SYNDICATED ESTAFA
EN BANC
[ G.R. No. 205698, July 31, 2018 ]
HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG
FUND, PETITIONER, VS. CHRISTINA SAGUN, RESPONDENT.
[G.R. No. 205780]
DEPARTMENT OF JUSTICE, REP. BY SEC. LEILA DE LIMA, STATE PROSECUTOR THEODORE M.
VILLANUEVA, AND PROSECUTOR GENERAL CLARO A. ARELLANO, AND THE NATIONAL BUREAU
OF INVESTIGATION (NBI), PETITIONERS, VS. CHRISTINA SAGUN, RESPONDENT.
[G.R. No. 208744]
DEPARTMENT OF JUSTICE, PETITIONER, VS. DELFIN S. LEE, RESPONDENT.
[G.R. No. 209424]
HOME DEVELOPMENT MUTUAL FUND (HDMF), PETITIONER, VS. GLOBE ASIATIQUE REALTY
HOLDINGS CORPORATION, DELFIN S. LEE, IN HIS CAPACITY AS THE PRESIDENT OF THE
CORPORATION, AND TESSIE G. WANG, RESPONDENTS.
[G.R. No. 209446]
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. ALEX M. ALVAREZ, RESPONDENT.
[G.R. No. 209489]
HOME DEVELOPMENT MUTUAL FUND, PETITIONER, VS. ATTY. ALEX M. ALVAREZ RESPONDENT.
[G.R. No. 209852]
HOME DEVELOPMENT MUTUAL FUND, (HDMF), PETITIONER, VS. DELFIN S. LEE,
RESPONDENT.
[G.R. No. 210095]
DEPARTMENT OF JUSTICE, PETITIONER, VS. DELFIN S. LEE, RESPONDENT.
[G.R. No. 210143]
PEOPLE OF THE PHILIPPINES PETITIONER, VS. DELFIN S. LEE, RESPONDENT.
[G.R. No. 228452]
HOME DEVELOPMENT MUTUAL FUND (HDMF), PETITIONER, VS. DEXTER L. LEE, RESPONDENT.
[G.R. No. 228730]
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. DEXTER L. LEE, RESPONDENT.
[G.R. No. 230680]
CRISTINA SALAGAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND HOME DEVELOPMENT
MUTUAL FUND (HDMF), RESPONDENTS.
D E C I S I O N
BERSAMIN,
J.:
We hereby consider and
resolve the following consolidated appeals by petition for review on certiorari,[1] namely:
(1) G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452
and 228730, whereby petitioners Department of Justice (DOJ), the People of
the Philippines and the Home Development Mutual Fund (HDMF) assail the
decisions[2] of the Court of Appeals (CA): (i) setting
aside the August 10, 2011 Review Resolution of the DOJ insofar
as Christina Sagun (Sagun) is concerned; and (ii) annulling the May 22, 2012
and August 22, 2012 resolutions of the Regional Trial Court, Branch 42, in San
Fernando City, Pampanga (Pampanga RTC), and quashing the warrants of arrest
issued against Delfin Lee, Dexter Lee (Dexter), and Atty. Alex Alvarez (Atty.
Alvarez) for lack of probable cause;
(2) G.R. No. 230680, whereby petitioner Cristina Salagan assails
the decision of the CA dismissing her petition for certiorari and
upholding the resolutions dated May 22, 2012 and January 29, 2014 of the
Pampanga RTC insofar as finding probable cause for the crime of
syndicated estafa and
the issuance of a warrant of arrest against her were concerned;
(3) G.R. Nos. 208744 and 210095, whereby the DOJ challenges the
resolutions of the CA dismissing its petition for certiorari for
being filed out of time;[3] and
(4) G.R. No. 209424, whereby HDMF assails the decision promulgated
on October 7, 2013,[4] whereby the CA found no grave abuse of
discretion on the part of the Regional Trial Court, Branch 58, in Makati City
(Makati RTC) in issuing its January 31, 2012 final resolution granting the
motion for summary judgment of Globe Asiatique Realty Holdings, Corp. (Globe
Asiatique) and Delfin Lee in Civil Case No. 10-1120 entitled Globe
Asiatique Realty Holdings Corporation and Delfin Lee, in his capacity as
President of the Corportion v. Home Development Mutual Fund (HDMF) or Pag-IBIG
Fund, its Board of Trustees and Emma Linda Faria, Officer-in-Charge.
Salient Factual Antecedents
In 2008, Globe Asiatique, through its president Delfin Lee, entered into a
Window I-Contract to Sell (CTS) Real Estate Mortgage (REM) with Buy-back
Guaranty take out mechanism with the HDMF, also known as the Pag-Ibig Fund, for
its Xevera Bacolor Project in Pampanga. Globe Asiatique and HDMF also executed
various Funding Commitment Agreements (FCAs) and Memoranda of Agreement (MOAs).[5]
Under the FCAs, Delfin Lee warranted that the loan applicants that Globe
Asiatique would allow to pre-process, and whose housing loans it would approve,
were existing buyers of its real estate and qualified to avail themselves of
loans from HDMF under the Pag-Ibig Fund; that all documents submitted to the
HDMF in behalf of the applicants, inclusive of the individual titles and the
corresponding Deeds of Assignment, were valid, binding and enforceable; that
any person or agent employed by Globe Asiatique or allowed to transact or do
business in its behalf had not committed any act of misrepresentation; and that
in the event of a default of the three-month payment on the amortizations by
said members or any breach of warranties, Globe Asiatique would buy back the
CTS/REM accounts during the first two years of the loan.[6]
The parties further agreed that Globe Asiatique would collect the monthly
amortizations on the loans obtained by its buyers in the first two years of the
loan agreements and remit the amounts collected to HDMF through a Collection
Servicing Agreement (CSA). In this regard, Delfin Lee undertook to maintain at
least 90% Performing Accounts Ratio (PAR) under the CSA.[7]
On June 10, 2008, Delfin Lee proposed the piloting of a Special Other Working
Group (OWG) Membership Program for its Xevera Bacolor Project while the FCA was
in effect. The OWG Membership Program would comprise of HDMF members who were
not formally employed but derived income from non-formal sources (e.g.,
practicing professionals, self-employed members, Overseas Filipino Workers
(OFWs), and entrepreneurs). Delfin Lee offered to extend the buy-back guarantee
from two to five years to bolster his position that the project was viable.
HDMF eventually entered into another agreement for this purpose.[8]
Corollary to the foregoing, the parties entered into a second FCA worth
P200,000,000.00. Globe Asiatique likewise undertook that the PAR for all of its
projects would be increased to at least 95%; that the buy-back guaranty for all
accounts taken out from the Xevera Bacolor Project would be increased to five
years; that it would assign all its housing loan proceeds from its other
projects to HDMF to cover any unpaid obligations from the Xevera Project; and
that the OWG borrowers, to be eligible for Pag-Ibig Membership, would be
required to present their Income Tax Returns (ITRs) and affidavits of income.[9]
On July 13, 2009, the parties executed a MOA granting Globe Asiatique an
additional P5,000,000,000.00 funding commitment line for its Xevera Projects in
Pampanga on the condition that Globe Asiatique would maintain a 95% PAR, and
that the housing loan take-outs would be covered by a buy-back guaranty of five
years.[10] Section 9 of the MOA expressly stated,
however, that the MOA "supersedes, amends and modifies provisions of all
other previous and existing Agreements that are Inconsistent hereto."[11]
More FCAs were executed between the parties. According to HDMF, the aggregate
amount of P7,007,806,000.00 was released to Globe Asiatique in a span of two
years from 2008 to September 24, 2010, representing a total of 9,951 accounts.[12]
In the course of its regular validation of buyers' membership eligibilities for
taking out loans for the Xevera Project, HDMF allegedly discovered some
fraudulent transactions and false representations purportedly committed by
Globe Asiatique, its owners, officers, directors, employees, and
agents/representatives, in conspiracy with HDMF employees. HDMF invited the
attention of Delfin Lee regarding some 351 buyers who surrendered or withdrew their
loans and were no longer interested in pursuing the same, and requested Globe
Asiatique to validate the 351 buyers. Delfin Lee replied that Globe Asiatique
was actually monitoring about 1,000 suspicious buyers' accounts. Subsequently,
HDMF ostensibly found out about an additional 350 buyers who either denied
knowledge of having availed of loans or manifested their intention to terminate
their account.[13]
As a result, HDMF revoked the authority of Globe Asiatique under the FCA;
suspended all take-outs for new housing loans; required the buyback of the 701
fraudulent accounts; and cancelled the release of funds to Globe Asiatique in
August 2010.
About a month later, Globe Asiatique discontinued remitting the monthly
amortization collections from all borrowers of Xevera.
Finally, HDMF terminated the CSA with Globe Asiatique on August 31, 2010.[14]
Meanwhile, HDMF continued its post take-out validation of the borrowers, and
discovered that at least 644 supposed borrowers under the OWG Membership Program
who were processed and approved by Globe Asiatique for the take-out by HDMF
were not aware of the loans they had supposedly signed in relation to the
Xevera Project; and assuming they were aware of the loan agreements, they had
merely signed the same in consideration of money given to them by Globe
Asiatique; that some borrowers were neither members of HDMF nor qualified to
take out a housing loan from HDMF because they had insufficient or no income at
all or they did not have the minimum number of contributions in HDMF; and that
some of the borrowers did not live in the units they purchased.[15]
HDMF alleged that at least 805 borrowers could not be located or were unknown
in the addresses they had provided in the loan agreements, or had indicated
non-existent addresses therein; and that it incurred damages totalling P1.04
billion covering the loans of 644 fraudulent and 805 fake borrowers attributed
to the fraudulent and criminal misrepresentations of Delfin Lee and Globe
Asiatique's officials and employees.[16]
The Criminal Charges
Upon the recommendation of the National Bureau of Investigation (NBI), the DOJ
conducted its preliminary investigation against Globe Asiatique, particularly
its officers, namely: Delfin S. Lee, Dexter L. Lee, Ramon Palma Gil, Cristina
Salagan, Lerma Vitug, Tintin Fonclara, Geraldine Fonclara, Revelyn Reyes, Atty.
Rod Macaspac, Marvin Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan,
Nannet Haguiling, John Tungol and Atty. Alex Alvarez on the strength of the
complaint-affidavit dated October 29, 2010 filed by Emma Linda B. Faria, then
the officer-in-charge (OIC) of the HDMF. This first complaint alleged the
commission of the crime of syndicated estafa constituting economic
sabotage, as defined and penalized under Article 315(2)(a) of the Revised
Penal Code, in relation to Presidential Decree No. 1689 (P.D. No. 1689).[17]
The DOJ formed a panel of prosecutors to investigate the complaint.
On December 10, 2010, the NBI Anti-Graft Division recommended the filing of a
second complaint for syndicated estafa constituting economic sabotage
under P.D. No. 1689, in relation to Article 315(2) of the Revised Penal
Code against Delfin Lee and the others. This second complaint was
precipitated by the complaints of supposed Globe Asiatique clients such as
Evelyn Niebres, Catherine Bacani and Ronald San Nicolas, who were victims of
double sale perpetrated by Globe Asiatique.[18]
Also, HDMF brought a complaint against Globe Asiatique and its officers for the
fraudulent take-out of housing loans for bogus buyers.
Subsequently, the DOJ formed yet another panel of prosecutors to conduct
another preliminary investigation.[19]
Upon learning of the filing of the second case in the DOJ, Delfin Lee filed a
petition for the suspension of proceedings pending the outcome of the civil
action for specific performance that he and Globe Asiatique had commenced in
the Makati RTC, contending therein that the issue in the civil case constituted
a prejudicial question vis-a-vis the second DOJ case.
On February 21, 2011, the DOJ panel of prosecutors issued an Omnibus
Order denying Delfin Lee's prayer for suspension of proceedings.
After Delfin Lee's motion for reconsideration was denied on July 5, 2011, he
filed his counter-affidavit ad cautelam in the DOJ.[20]
On August 10, 2011, Prosecutor General Claro A. Arellano approved the Review
Resolution of Senior Deputy State Prosecutor Theodore M. Villanueva,
the Chairman of the DOJ's Task Force on Securities and Business Scam (SDSP
Villanueva) pertaining to the first criminal complaint.[21] It is noted that the investigating prosecutors of the DOJ's
Task Force on Securities and Business Scam had initially recommended the filing
of charges for the crime of estafa defined and penalized under paragraph 2(a) of
Article 315 of the Revised Penal Code, in relation to paragraph 2,
Section 1 of PD No. 1689, against Delfin Lee, Sagun, and Cristina Salagan
(Salagan). However, SDSP Villanueva recommended in the Review
Resolution the inclusion of Atty. Alvarez and Dexter Lee in the estafa charge,
thereby charging syndicated estafa, with no bail recommended.[22]
Consequently, Delfin Lee filed an amended petition on August 25, 2011 to enjoin
the DOJ from filing the information for syndicated estafa in relation to the first DOJ
case.[23]
On September 15, 2011, Sagun filed in the CA her petition for certiorari and
prohibition with prayer for the issuance of a temporary restraining order (TRO)
and/or writ of preliminary injunction to assail the August 10, 2011 Review
Resolution of the DOJ (C.A.-G.R. SP No. 121346).[24]
On his part, Atty. Alvarez resorted to his own petition for review on October
3, 2011 of the same August 10, 2011 Review Resolution in the
DOJ. However, on November 14, 2011, he withdrew his petition following his
filing of a petition in the Manila RTC on October 10, 2011 assailing the same
August 10, 2011 Review Resolution. He also filed a petition
for certiorari with the CA on November 15, 2011 to enjoin the
DOJ from tiling the information in the first syndicated estafa case, but he subsequently
withdrew the petition and filed on the same day a petition for injunction and
prohibition in the Caloocan City RTC, Branch 125, to enjoin the DOJ from filing
the information in the first syndicated estafa case and from conducting the
preliminary investigation in the second case.[25]
Proceedings in the Pasig RTC
Prior to the DOJ's issuance of its August 10, 2011 Review Resolution,
Delfin Lee initiated his action for injunction on July 28, 2011 in the Pasig
RTC to enjoin the DOJ from proceeding with the second DOJ case, and reiterated
therein that the civil case pending in the Makati RTC constituted a prejudicial
question vis-a-vis the second DOJ case. The case was docketed as Civil Case No.
73115 entitled Delfin S. Lee v. Department of Justice.
The Pasig RTC, then presided by Judge Rolando Mislang, granted Delfin Lee's
prayer for the issuance of the TROs on August 16, 2011, and admitted the
amended petition on August 26, 2011.[26]
The Pasig RTC thereafter issued the writ of preliminary injunction under both
the original and the an1ended petitions on September 5, 2011.[27]
Aggrieved, the DOJ filed a petition for certiorari on October
6, 2011 (C.A.-G.R. SP No. 121594), alleging that Judge Mislang had committed
grave abuse of discretion in issuing the writ of preliminary injunction
enjoining the filing of the information for syndicated estafa with respect to the first case
and from proceeding with the preliminary investigation in the second case on
the ground of the existence of a prejudicial question.[28]
On April 16, 2012, the CA granted the DOJ's petition for certiorari in
C.A.-G.R. SP No. 121594, and ruled that the facts and issues in the civil case
pending in the Makati RTC were not determinative of the guilt or innocence of
Delfin Lee in the cases filed in the DOJ; hence, it annulled and set aside the
writ of preliminary injunction issued by Judge Mislang.[29]
The adverse ruling in C.A.-G.R. SP No. 121594 was appealed by petition for
review on certiorari. On July 4, 2012, the Court dismissed the
appeal because of Delfin Lee's failure to show any reversible error on the part
of the CA in issuing the assailed decision. The dismissal became final and
executory.[30]
Much later on, Delfin Lee learned of the third and fourth criminal complaints
filed in the DOJ. Again, he sought the issuance of a TRO by the Pasig RTC.
On March 21, 2013, Judge Mislang issued the second TRO enjoining the
preliminary investigation of the second, third and fourth criminal complaints.[31]
On April 10, 2013, Judge Mislang issued the writ of preliminary injunction in
Civil Case No. 73115 enjoining the conduct of the preliminary investigation in
the second, third and fourth criminal complaints.[32]
Consequently, the DOJ filed another petition for certiorari,
docketed as C.A.-G.R. SP No. 130409, to annul the writ of
preliminary injunction issued on April 10, 2013 by the Pasig RTC.
Proceedings in the Pampanga RTC
With the lifting of the first writ of preliminary injunction issued by the
Pasig RTC, the DOJ filed a criminal case for syndicated estafa against Delfin Lee, Dexter
Lee, Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty. Alex
Alvarez (Atty. Alvarez) on April 30, 2012 in the Pampanga RTC. The case was
docketed as Criminal Case No. 18480 entitled People of the Philippines
v. Delfin Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex
Alvarez.[33]
The information in Criminal Case No. 18480 reads:
That sometime during the period from 10 June
2008 to 24 September 2010, or on dates prior and subsequent thereto, in the
City of San Fernando, Pampanga, and within the jurisdiction of this Honorable
Court, the above-named accused DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN[,]
CRISTINA SALAGAN and ATTY. ALEX ALVAREZ, acting as a syndicate formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme of soliciting funds from the general public, each performing a
particular act in furtherance of the common design, by way of take out on
housing loans of supposed Pag-IBIG fund members through the use of fictitious
buyers and/or "special buyers" conspiring, confederating and mutually
helping one another, by means of false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of fraud, did then and there
wilfully, unlawfully and feloniously defraud the private complainant HOME
DEVELOPMENT MUTUAL FUND, otherwise known as the Pag-IBIG Fund, in the following
manner, to wit: accused Delfin S. Lee, being the president and chief executive
officer of Globe Asiatique Realty Holdings Corporation (GA), a domestic
corporation engaged in real estate development, did then and there willfully,
unlawfully and knowingly enter into funding commitment agreements and other
transactions with the private complainant, wherein said accused Delfin S. Lee
made false and fraudulent representations to the latter that GA has interested
buyers in its Xevera projects in Bacolor and Mabalacat, Pampanga when, in truth
and in fact, said accused knew fully well that the corporation does not have
such buyers, as in fact the said corporation, through accused Delfin S. Lee,
Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez, in
conspiracy with one another, submitted names of fictitious buyers and documents
to Pag-IBIG Fund as housing loan applicants/buyers of GA's Xevera projects in
order to obtain, as in fact the said corporation obtained, through accused
Delfin S. Lee, fund releases from HDMF by way of housing loan take-out of the
said fictitious buyers. In addition, the said corporation, through accused
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex
Alvarez, has also engaged in a "special buyers" scheme whereby it recruited
persons who does not have any intention to buy its housing units in Xevera but,
in exchange for a fee, said "special buyers" lent their names and
Pag-IBIG membership to GA, so that the said corporation could use, as in fact
it has used, the names and Pag-IBIG membership of the said "special
buyers" in obtaining fund releases from HDMF, as the said corporation,
through accused Delfin S. Lee, had in fact obtained fund releases from HDMF, by
way of take-out of the supposed housing loans of the "special
buyers", and by reason of the aforesaid false and fraudulent
representations of accused Delfin S. Lee, Dexter L. Lee, Christina Sagun,
Cristina Salagan and Atty. Alex Alvarez, HDMF was induced to release, through
several funding commitment agreements, to Globe Asiatique Realty Holdings
Corporation, through accused Delfin S. Lee, the total amount of
P6,653,546,000.00, more or less, and upon receipt of the aforesaid amount, the
above-named accused did then and there willfully, unlawfully and feloniously
convert, misappropriate and misapply the same, and despite repeated demands,
the above-named accused failed and refused to pay the same, to the damage and
prejudice of the private complainant in the aforesaid amount.
As to the element of deceit, it was found that the documents submitted by GA
concerning the existence and qualifications of its buyers are spurious and/or
questionable. It was uncovered that at least 351 of the supposed buyers have
already surrendered or withdrew their loans and/or are no longer interested in
pursuing their loans, while the alleged buyers for additional 350 Xevera
accounts have either denied availing of the loans or expressed their intention
to cancel their respective accounts. Afterwards, documents obtained by HDMF
through special audit conducted on the Xevera Projects disclose that out of the
8,230 loans taken out by Pag-IBIG, only 39% of the borrowers belong to the
Other Working Group (OWG) category. On the other hand, out of the 10% of the
OWG surveyed/audited, only 1.85% are actually living in the units they
purchased, whereas, 83.38% of the acquired units remain unoccupied; 7.69% of
the units are closed, 6.15% are being occupied by third parties; and lastly,
0.92% of the units are yet to be constructed. The same documents likewise show
that: (a) from a random examination of the units taken out by Pag-IBIG and
which are being occupied by third parties, 16 units are being occupied by
in-house buyers - two of whom have fully paid their obligations with GA; 3
units were leased out by non borrowers; 1 unit is being occupied by a
replacement buyer; and 82% of the borrowers of the units have failed to submit
their respective Income Tax Returns (ITR) which is a mandatory requirement for
the approval of their loan applications, and (b) as a result of the post
take-out validation conducted by HDMF, it was found that 644 borrowers endorsed
by GA are not genuine buyers of Xevera homes while 802 are nowhere to be found;
3 buyers are already deceased; and 275 were not around during the visit, hence,
establishing that all of them are fictitious buyers.
In connection with the "special buyers scheme," it was established
that the people engaged as such have no intention of buying housing units from
GA, but merely agreed to the same after GA's agents sought them out for a fee
of P5,000.00. After being paid such fee, the aforementioned "special
buyers" agreed to apply for membership with Pag-IBIG, on the condition
that it is GA that pays for their 24 months installments, so that they can be
qualified to apply for a Pag-IBIG housing loan. Thereafter, these "special
buyers" are made to execute loan and other supporting documents, which are
then submitted to HDMF for take-out of their housing loans for the Xevera
projects. After take-out, GA pays the monthly amortizations of these
"special buyers" to Pag-IBIG, using the payment made to it by
Pag-IBIG on the housing loan of GA's Xevera project buyers. In this wise, GA's
Performing Accounts Ration (PAR) reached as high as 99.97%. However, when HDMF
stopped fund releases to GA by way of housing loan take-outs of its buyers, or
sometime August 2010, GA started to fail in remitting to HDMF Pampanga Branch
office the monthly housing loan amortizations of its buyers of Xevera project.
Thus, GA's almost 100% monthly collection/remittance rate dropped to 0% or no
remittance at all when HDMF stopped its fund releases to GA, thereby
establishing that the monthly amortizations of its borrowers were being paid by
GA from the funds released by HDMF on the housing loans of its Xevera housing
project borrowers.
That in carrying out the aforesaid conspiracy, accused Christina Sagun, head of
the documentation department of Globe Asiatique Realty and Holdings Corp., did
then and there unlawfully, feloniously and knowingly process and approve the
housing loan applications of the said fictitious and "special buyers"
of GA, in clear violation of the terms of conditions of the agreements entered
into between HDMF and GA; accused Dexter L. Lee, did then and there,
unlawfully, feloniously and knowingly order employees of GA to find and recruit
"special buyers," and in fact found such special buyers, in
accordance with the aforementioned illegal scheme, and in fact, is a
co-signatory of the checks issued by GA in favor of the said "special
buyers;" accused Atty. Alex Alvarez, did then and there unlawfully,
feloniously and knowingly notarize crucial pieces of documents, consisting,
among others, of the buyer's affidavit of income, promissory note, and
developer's affidavit (by Ms. Cristina Sagun) alleging compliance with the
conditions set by HDMF, all of which are essential for the processing and
approval of the purported transaction; and accused CRISTINA SALAGAN, being the
head of GA's accounting department, did then and there unlawfully, feloniously
and knowingly allow the release of the questionable amounts of P5,000.00 as
payment to every fake/fictitious and/or "special buyer" applicant of
GA despite knowledge of its unlawful and illegal nature, to the damage and
prejudice of HDMF and/or its members.
CONTRARY TO LAW.[34]
In due course, the respondents separately moved
to quash the information and to seek judicial determination of probable cause.[35]
On May 22, 2012, the Pampanga RTC found probable cause for syndicated estafa and
for the issuance of warrants of arrest, to wit:
PREMISES GIVEN, the Court orders the following:
I. Probable cause for the crime of ESTAFA (ARTICLE 315
[2] [a] of the Revised Penal Code, in relation to Section 1 of P.D. 1689, as
amended, is found against the Accused DELFIN S. LEE, DEXTER L. LEE, CHRISTINA
SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.
II. Issue Warrant of Arrest against DELFIN S. LEE, DEXTER L. LEE, CHRISTINA
SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.
III. There is NO BAIL RECOMMENDED for each of DELFIN S. LEE, DEXTER L. LEE,
CHRISTINA SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.
The setting (sic) on May 23 and 24, 2010 is (sic) CANCELLED.
SO ORDERED.[36]
Upon notice of the
resolution, Delfin Lee filed a Motion to Recall/Quash Warrant of Arrest
and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending
Resolution of this Motion.
On August 22, 2012, the Pampanga RTC denied Delfin Lee's Motion to
Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release to Law
Enforcement Agencies Pending Resolution of this Motion.[37]
Delfin Lee, Dexter and Salagan moved to reconsider the August 22, 2012
resolution of the Pampanga RTC.
Without waiting for the resolution of the motion, Delfin Lee filed a petition
for certiorari with prayer for the issuance of a TRO and/or
writ of preliminary injunction in the CA on November 26, 2012 to nullify the
resolutions of the Pampanga RTC dated May 22, 2012 and August 22, 2012 (C.A.-G.R.
SP No. 127553).[38]
Meanwhile, Atty. Alvarez also filed a motion for reconsideration of the May 22,
2012 resolution, but the Pampanga RTC denied the motion on August 22, 2012.
Thereafter, he filed a petition for certiorari with the CA to
nullify and set aside the May 22, 2012 and August 22, 2012 resolutions of the
Pampanga RTC. The petition was docketed as C.A.-G.R. SP No. 127690.
Dexter filed his own petition for certiorari in the CA to
question the May 22, 2012 and August 22, 2012 resolutions of the Pampanga RTC,
Salagan likewise filed her own petition for certiorari in the
CA alleging grave abuse of discretion on the part respondent Judge of the
Pampanga RTC in issuing the May 22, 2012 resolution denying her second motion
to quash information with prayer to re-determine probable cause and the January
29, 2014 resolution denying her motion for reconsideration.
The Civil Case
(Proceedings before the Makati RTC)
Globe Asiatique and Delfin Lee initiated the complaint for specific performance
and damages against HDMF on November 15, 2010. Docketed as Civil Case No.
10-1120,[39] the case was assigned to Branch 58 of the
Makati RTC. Globe Asiatique and Delfin Lee thereby sought to compel HDMF to
accept the proposed replacements of the buyers/borrowers who had become
delinquent in their amortizations, asserting that HDMF's inaction to accept the
replacements had forced Globe Asiatique to default on its obligations under the
MOA and FCAs.[40]
Globe Asiatique and Delfin Lee filed a Motion for Summary Judgment,
which the Makati RTC, after due proceedings, resolved on January 30, 2012,
disposing thusly:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered
declaring that:
1. Plaintiff (sic) have proven their case by preponderance of evidence. As
such, they are entitled to specific performance and right to damages as prayed
for in the Complaint, except that the exact amount of damages will have to be
determined during trial proper.
2. Pursuant to the provisions of their MOA amending the continuing FCAs and
CSAs, defendant HDMF is hereby ordered to comply faithfully and religiously
with its obligation under the said contracts, including but not limited to the
release of loan take-out proceeds of those accounts whose Deed[s] of Assignment
with Special Power of Attorney have already been annotated in the corresponding
Transfer Certificate of Title covering the houses and lots purchased by the
Pag-IBIG member-borrowers from plaintiff GARHC as well as the evaluation of
the loan applications of those who underwent or will undergo plaintiff GARHC's
loan counselling and are qualified or PAG-IBIG FUND loans under the MOA and
continuing FCAs and process the approval thereof only if qualified, under the
Window 1 Facility as provided for in the MOA and continuing FCAs;
3. The unilateral cancellation by defendant HDMF of the continuing FCAs
specifically the latest FCAs of December 15, 2009, January 5 and March 17, 2010
and CSA dated 10 February 2009, is hereby SET ASIDE[;]
4. Defendants are ordered to automatically off-set the balance of those listed
in Annex "E" of the Motion for Summary Judgment against the retention
money, escrow money, funding commitment fees, loan takeout proceeds and other
receivables of plaintiff GARHC which are still in the control and possession of
defendant HDMF;
5. Defendants are ordered to accept the replacement-buyers listed in Annex
"F" of the Motion for Summary Judgment, which list is unopposed by
defendants, without interest or penalty from the time of defendant HDMF's
cancellation of the Collection Servicing Agreement (CSA) resulting to the
refusal to accept the same up to the time that these replacement buyers are
actually accepted by defendant HDMF;
6. Defendants are ordered to release the corresponding Transfer Certificate of
Title[s] (TCTs) of those accounts which are fully paid or subjected to
automatic off-setting starting from the list in Annex "E" of the
Motion for Summary Judgment and thereafter from those listed in Annex
"F" thereof and cause the corresponding cancellation of the
annotations in the titles thereof.
Let this case be set for the presentation of evidence on the exact amount of
damages that plaintiffs are entitled to on March 12, 2012 at 8:30 in the
morning.
SO ORDERED.[41]
On December 11, 2012,
the Makati RTC denied the motion for reconsideration of OIC Faria and Atty.
Berberabe filed through the Yorac Arroyo Chua Caedo and Coronal Law Firm (the
Yorac Law Firm). The trial court held that the Yorac Law Firm was not duly
authorized to represent the HDMF; hence, it treated the motion for
reconsideration as a mere scrap of paper and opined that its filing did not
toll the running of the period to appeal. As to the HDMF, the Makati RTC,
noting with approval the manifestation of Globe Asiatique and Delfin Lee to the
effect that the HDMF had not filed a motion for reconsideration or taken an
appeal, deemed the summary judgment final and executory as to the HDMF.[42]
Aggrieved, the HDMF brought its petition for certiorari (C.A.-G.R.
SP No. 128262).
Decisions of the CA
The CA promulgated the separate decisions now under review.
1.
C.A.-G.R. SP No. 130409
(DOJ petition assailing the April 10, 2013 writ of preliminary injunction
issued by the Pasig RTC)
On June 18, 2013, the DOJ filed the intended petition for certiorari but
inadvertently did not indicate therein the proper docket number for the case
thereby causing the assignment by the CA of a new docket number, specifically
C.A.-G.R. SP No. 130409. On June 26, 2013, the CA dismissed the DOJ's petition
for certiorari in C.A.-G.R. SP No. 130409 on the ground that
it had not received a motion for extension of time to file the petition.[43]
Meanwhile, on July 8, 2013, the CA issued its resolution in C.A.-G.R. SP No.
130404 denying the DOJ's motion for extension for failure of the DOJ to file
the intended petition for certiorari.
Realizing its error later on, the DOJ immediately filed a manifestation with
motion to admit petition for certiorari to clarify the mix-up
and rectify its error. On August 14, 2013, the CA denied the DOJ's
manifestation with motion to admit petition for certiorari.
Hence, the DOJ filed a petition docketed as G.R. No. 208744 to assail the
resolution promulgated on July 8, 2013 in C.A.-G.R. SP No. 130404.[44] As to CA-G.R. SP No. 130409, the DOJ moved for
reconsideration of the CA's resolution dated June 26, 2013, but the motion was
denied on November 11, 2013.[45]
2.
C.A.-G.R. SP No. 128262
(HDMF Petition assailing the January 30, 2012 and December 11, 2012 resolutions
of the Makati RTC in Civil Case No. 10-1120)
On October 7, 2013, the CA promulgated its decision dismissing the HDMF
petition in C.A.-G.R. SP No. 128262,[46] to wit:
WHEREFORE, there being no grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of public respondent in rendering the
assailed Resolution dated January 30, 2012 containing the Summary Judgment and
the Resolution dated December 11, 2012 denying HDMF, Faria and Atty.
Berberabe's Motion for Reconsideration, the instant petition is hereby DISMISSED.
SO ORDERED.
The CA opined that the
HDMF had availed itself of the wrong remedy to assail the January 30, 2012
summary judgment and the December 11, 2012 resolution of the Makati RTC; and
that the certiorari petition did not further show that it had
been filed under the authority of the Office of the Government Corporate
Counsel, or by a private law firm with the necessary pre-requisite conformity
of the Government Corporate Counsel and Commission on Audit.[47]
3.
C.A.-G.R. SP No. 121346
(Sagun Petition assailing the August 10, 2011 Review Resolution of
the DOJ)
In C.A.-G.R. SP No. 121346, the CA opined that respondent Sagun's
duties as the Documentation Head of Globe Asiatique were ministerial in nature
and did not require the employment of much discretion. As the DOJ observed in
its assailed Review Resolution, Sagun's functions were limited to
the collation of the documents submitted by the borrowers/buyers through Globe
Asiatique's Marketing Department, and to ensuring that such documents were
complete and duly accomplished, and to the determination and verification from
the HDMF through the submission of Membership Status Verification whether the
borrowers/buyers were really HDMF members, or had updated contributions, or had
no existing housing loans, and were thus qualified to apply for housing loans.
The CA conceded that any errors or oversights, which could occur in the
performance of Sagun's duties, should be attributed to her negligence, as
concluded in the Review Resolution.
While the DOJ asserted that the fraud could have been averted had Sagun not
been negligent, the CA explained that such negligence negated any intent to
commit a crime; hence, Sagun could not have committed the crime of estafa charged.
Moreover, the documents Sagun had reviewed were forwarded to the HDMF for
evaluation and approval; hence, the HDMF had the opportunity and the ultimate
prerogative and discretion on the documents.
Accordingly, the CA disposed in its assailed decision promulgated on October 5,
2012 in C.A.-G.R. SP No. 121346,[48] viz.:
WHEREFORE, premises considered, the Petition for Certiorari and
Prohibition is hereby PARTIALLY GRANTED. Consequently, the subject
Review Resolution dated August 10, 2011 issued by respondent DOJ is SET
ASIDE and DISMISSED as against petitioner Christina
Sagun.
SO ORDERED.[49]
4.
C.A.-G.R. SP No. 127553, C.A.-G.R. SP No.127554, and C.A.-G.R. SP No. 127690
(respectively, the Delfin Lee Petition, Dexter Lee Petition and Alvarez
Petition assailing the May 22, 2012 and August 22, 2012 resolutions of the
Pampanga RTC)
On October 3, 2013, the CA promulgated its decision on the Alvarez petition (C.A.-G.R.
SP No. 127690),[50] ruling that there was not enough evidence
to implicate Atty. Alvarez; that the RTC had merely listed the documents
submitted by the task force and had not conducted any evaluation of the
evidence to determine whether or not Alvarez had participated in the alleged
grand scheme to defraud the HDMF; and that the RTC had relied solely on the
recommendation of the panel of prosecutors, which was insufficient under
prevailing jurisprudence. The disposition was as follows:
WHEREFORE, in view of the foregoing premises, the Petition for Certiorari
and the Supplemental Petition are PARTIALLY GRANTED and the
assailed Resolutions dated May 22, 2012 and August 22, 2012 of the Regional
Trial Court, Branch 42 of San Fernando City, Pampanga in so far as petitioner ALEX
M. ALVAREZ is concerned are hereby annulled and set aside.
Accordingly, the warrant of arrest issued against him is hereby LIFTED,
QUASHED/RECALLED.
Meantime, since the evidence do not support the finding of probable
cause against petitioner ALEX M. ALVAREZ, public respondent court
is hereby enjoined from proceeding with Criminal Case No. 18480 as against said
petitioner only.
SO ORDERED.[51]
On November 7, 2013, the CA promulgated its
decision on Delfin Lee's petition (C.A.-G.R. SP No. 127553),[52] decreeing:
WHEREFORE, in view of the foregoing, the instant petition is hereby PARTIALLY
GRANTED. The assailed Resolutions dated May 22, 2012 and August 22, 2012
are hereby ANNULLED and SET ASIDE for the
issuance thereof was attended with grave abuse of discretion on the part of
public respondent Hon. Ma. Amifaith S. Fider-Reyes, in her capacity as the
Presiding Judge of the San Fernando, Pampanga RTC - Branch 42. Consequently,
the Warrant of Arrest issued against petitioner Delfin S. Lee is hereby QUASHED,
RECALLED AND LIFTED. Afore-named public respondent judge is directed
to CEASE and DESIST from further proceeding
with Criminal Case No. 18480 insofar as petitioner Delfin S. Lee is concerned.
Furthermore, all government agencies tasked in the enforcement of the said
warrant of arrest including but not limited to the Philippine National Police
(PNP), the National Bureau of Investigation (NBI) and the Bureau of Immigration
(BI) are immediately ENJOINED from implementing the same.
SO ORDERED.[53]
The CA observed that the RTC gravely abused its
discretion because its conclusion on finding probable cause to issue the arrest
warrant was in the nature of speculation; that the RTC had merely relied on the
information, the Review Resolution and the six boxes of
documentary evidence to find and conclude that a huge amount of money had been
transferred from the HDMF to Globe Asiatique through a complex scheme that
could only have been attained through the sustained action of people in concert
to commit their criminal intention; that such findings and conclusions were not
based on hard facts and solid evidence as required by jurisprudence; that the
report did not mention how many perpetrators had conspired against the HDMF;
that the parts of Delfin Lee and his supposed cohorts in the supposed
fraudulent acts committed against the HDMF had not been particularly
identified; that the conversion of the recommendation from the filing of
simple estafa to
syndicated estafa had
not been clearly explained in the Review Resolution; that the RTC
had simply adopted such findings without justifying how the charge could be for
syndicated instead of simple estafa; and that the RTC had also issued the resolution a
day immediately after the six boxes of documentary evidence had come to its
knowledge as the trial court.
The CA debunked the HDMF's argument that Delfin Lee had defrauded it into
releasing a considerable sum of money to Globe Asiatique through a complex
scheme involving fraudulent buyers. The CA noted that the Deed of
Assignment with Contract to Sell and Special Power of Attorney executed
between Globe Asiatique and the HDMF showed that the HDMF had been ultimately
duty-bound to check the applications of prospective borrowers and to approve
the same; that, consequently, whatever damage the HDMF had incurred could not
be solely ascribed to Delfin Lee; that in fact the DOJ had also endorsed
the Review Resolution to the Ombudsman for the investigation
of the HDMF officers for violation of Republic Act No. 3019; and that it was
confusing that Delfin Lee had been charged separately of another crime instead
of being joined with the officers of the HDMF who had been referred to the
Ombudsman for investigation.
On November 16, 2016, the CA promulgated its decision on Dexter's petition (C.A.-G.R.
No. 127554), declaring that the Pampanga RTC had erred in its determination
of probable cause against him;[54] that the Pampanga
RTC had gravely abused its discretion when it based its assessment solely on
the Review Resolution of the panel of prosecutors, the
information, and the six boxes of documents presented as evidence by the
Prosecution without making its independent assessment of the documents and
other pieces of evidence to validate the issuance of the arrest warrant issued
against Dexter.
The CA disposed thusly:
ACCORDINGLY, on the foregoing reasons, the petition is PARTIALLY
GRANTED. The assailed Resolutions dated May 22, 2012 and August 22, 2012 of
Branch 42 of Regional Trial Court of Pampanga City (sic) are ANULLED
and SET ASIDE. Thus, the Warrant of Arrest issued against petitioner Dexter
L. Lee is hereby QUASHED, RECALLED and LIFTED. Furthermore, the
Regional Trial Court, Branch 42 of San Fernando, Pampanga is directed to CEASE
and DESIST from further proceeding with Criminal Case No. 18480
insofar as petitioner Dexter L. Lee is concerned.
Moreover, all government agencies tasked in the enforcement of the Warrant of
Arrest including but not limited to the Philippine National Police, the
National Bureau of Investigation and the Bureau of Immigration are
immediately ENJOINED from implementing the said Warrant.
SO ORDERED.[55]
5.
C.A.-G.R. SP No. 134573
(Salagan Petition assailing the May 22, 2012 and January 29, 2014 resolutions
of the Pampanga RTC)
Salagan claimed in C.A.-G.R. SP No. 134573 that there was no
probable cause to charge her with the crime of syndicated estafa in view of the decisions
promulgated in C.A.-G.R. SP No. 121346, C.A.-G.R. SP No. 127553, and C.A.-G.R.
SP No. 127690 finding that no probable cause existed against Sagun, Delfin Lee
and Atty. Alvarez, respectively, for syndicated estafa.
The CA declared in C.A.-G.R. SP No. 134573, however, that the
respondent Judge did not gravely abuse her discretion in finding probable cause
against Salagan, and upheld the validity of the information filed in the
Pampanga RTC against her; and that the warrant of arrest had been issued upon
probable cause personally determined by the judge.[56] It ruled that the respondent Judge had properly denied
Salagan's second motion to quash the information with prayer to re-determine
probable cause based on a supervening event considering that Salagan had
erroneously assumed that the separate decisions promulgated by the CA were
supervening events that justified the re-determination of probable cause.[57]
The CA disposed on March 18, 2016 in C.A.-G.R. SP No. 134573:
WHEREFORE, in view of the foregoing, the Petition for Certiorari is DISMISSED.
Accordingly, the Resolution dated May 22, 2012 and Resolution dated January 29,
2014 of the San Fernando, Pampanga RTC, Branch 42 are hereby AFFIRMED insofar
as Accused Cristina Salagan is concerned.
SO ORDERED.[58]
Issues
We simplify the legal issues as follows:
On various dates, the Court issued TROs[59] to enjoin the
implementation and enforcement of the assailed CA decisions and resolutions
issued in C.A.-G.R. SP No. 121346, C.A.-G.R. SP No. 127553, C.A.-G.R.
SP No. 127554, and C.A.-G.R. SP No. 127690. Inasmuch as
the warrants of arrest remained valid nonetheless, Delfin Lee was arrested by
virtue thereof,[60] and was detained in the Pampanga Provincial
Jail since his arrest until this time.[61] The other
respondents have remained at large.
Ruling of the Court
We PARTIALLY GRANT the petitions in G.R. No. 205698,
G.R. No. 205780, G.R. No. 209446, G.R. No. 209489, G.R. No. 209852, G.R. No.
210143, G.R. No. 228452, G.R. No. 228730 and G.R. No. 230680, and,
accordingly, MODIFY the assailed decisions of the CA.
On the other hand, we GRANT the petitions in G.R. No.
209424, G.R. No. 208744, and G.R. No. 210095, and,
accordingly, REVERSE the resolutions of the CA assailed
therein.
1.
The January 30,2012 summary judgment was an interlocutory judgment; hence, the
HDMF correctly instituted a petition for certiorari instead of
an appeal
The HDMF argues that it correctly instituted the special civil action for certiorari to
assail the resolutions of the Makati RTC dated January 30, 2012 and December
11, 2012 issued in Civil Case No. 10-1120; that the Yorac Law Firm had lawful
authority to represent the HDMF; and that the Makati RTC rendered the
questioned resolutions with grave abuse of discretion amounting to lack or
excess of jurisdiction.
The HDMF's arguments are partly meritorious.
1.a.
The January 30, 2012 summary judgment was an interlocutory order
In Civil Case No. 10-1120, Globe Asiatique and Delfin Lee specifically averred
separate causes of action against the HDMF, including that for damages. Thus,
they prayed for the following reliefs, to wit:
PRAYER
WHEREFORE, it is respectfully prayed that after due proceedings, a decision be
rendered by the Honorable Court in favor of the plaintiffs and against the
defendants, ordering the following:
1.
With respect to the
First Cause of Action, for defendant PAG-IBIG to accept the replacement of the
buyer/borrowers as offered by plaintiff GARHC contained in a list hereto
attached as Annex "O" pursuant to the latter's exercise of this
option under Section 3.7 of the latest Funding Commitment Agreement in relation
to the buyback provision under the Memorandum of Agreement dated 13 July 2009;
2.
With respect to the
Second Cause of Action, for defendant PAG-IBIG FUND to release the pending loan
take-outs and amount of retention due plaintiff GARHC pursuant to the MOA and
latest FCA and for all defendants to jointly and solidarily pay plaintiff GARHC
the sum of Php6,562,500.00, representing interest and penalty payments;
3.
With respect to the
Third Cause of Action, for defendant PAG-IBIG FUND to honor the provisions of
its MOA the latest FCA and CSA, to set aside the cancellation of the FCA and
CSA, and restore plaintiff GARHC to its rights under the MOA, latest FCA and
CSA;
4.
With respect to the
Fourth Cause of Action, for defendants to jointly and severally pay plaintiff
GARHC the sum of Php1 Million as and by way of attorney's fees, Php500,000.00
as and by way of litigation expenses, and cost of suit; and
5.
With respect to the
Fifth Cause of Action, for defendants to pay exemplary damages in the amount of
Php500,000.00.
Plaintiffs pray for such other reliefs and
remedies that the Honorable Court may deem just and equitable in the premises.[62]
During the proceedings, Globe Asiatique and
Delfin Lee filed the motion for summary judgment, stating the reliefs prayed
for, as follows:
PRAYER
WHEREFORE, it is respectfully prayed that after due notice and hearing, an
Order be issued granting the instant Motion for Summary Judgment and
simultaneously therewith, to render the Summary Judgment prayed for, declaring
and ordering the following:
1.
That plaintiffs have
proven their case by preponderance of evidence and, therefore, are entitled to
specific performance and right to damages as prayed for in the Complaint;
2.
That defendants HDMF
should faithfully and religiously comply with the pertinent provisions of the
FCAs and CSAs as amended by the MOA under the prevailing conditions prior to
the precipitate unilateral termination thereof by defendant HDMF, including but
not limited to the release of loan take-out proceeds of those accounts whose
DOAs with SPAs have already been annotated in the corresponding TCTs as well as
the evaluation and approval of the loan applications of those who underwent or
will undergo plaintiff GARCH's loan counselling and arc qualified for PAG-IBIG
loans under the MOA and FCAs;
3.
That defendant HDMF's
unilateral termination of the MOA, FCAs and CSA be declared illegal and be set
aside;
4.
That defendants be
ordered to automatically off-set the balance of those listed in Annex
"E" hereof composed of fully-paid buyer-borrowers against the
retention money, escrow money, funding commitment fees, loan take-out proceeds
and other receivables of plaintiff GARHC which are still in the control and
possession of defendant HDMF;
5.
That defendants be
ordered to accept the replacement-buyers listed in Annex "F" hereof,
without interest or penalty from the time of defendant HDMF's refusal to accept
the same up to the time that these replacement buyers are actually accepted by
defendant HDMF;
6.
That defendants be
ordered to release the corresponding Transfer Certificate of Title(s) (TCTs) of
those accounts which are fully paid or subjected to automatic off-setting
starting from the. list in Annex "e" of the Motion for Summary
Judgment and thereafter from those listed in Annex "F" thereof and
cause the corresponding cancellation of the annotations in the titles thereof,
including that of complaint-intervenor Tessie G. Wang's titles;
Plaintiffs pray for such other reliefs and
remedies that the Honorable Court may deem just and equitable in the premises.[63]
Globe Asiatique and Delfin Lee did not include
the claim for damages among the reliefs prayed for by their motion for summary
judgment.
Granting the motion for summary judgment, the Makati RTC ultimately disposed:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered
declaring that:
1.
Plaintiffs have proven
their case by preponderance of evidence. As such, they are entitled to
specific performance and right to damages as prayed for in the Complaint,
except that the exact amount of damages will have to be determined during trial
proper.
x x x x
Let this case be set for the presentation of evidence on the exact amount of
damages that plaintiffs are entitled on March 12, 2012 at 8:30 in the morning.
SO ORDERED.[64] (Bold underscoring supplied)
As the foregoing shows, the Makati RTC set the
case for the presentation of evidence to establish the other claims of Globe
Asiatique and Delfin Lee stated in their complaint for specific performance,
specifically those pertaining to the fourth and fifth causes of action. The
claims related to damages, which, being still essential parts of the case,
would still have to be established and adjudicated on their merits. Although
the recovery of the damages was dependent on the determination that the HDMF
had breached its contract with Globe Asiatique, it could not yet be said that
the Makati RTC had fully disposed of the case through the summary judgment
considering that there were still other reliefs sought by Globe Asiatique and Delfin
Lee yet to be tried and determined either way. Under the circumstances, the
summary judgment was, properly speaking, but an interlocutory judgment of
the Makati RTC.
In this connection, the rule on separate judgments - Section 5, Rule 36 of
the Rules of Court - is relevant. The rule requires the action
to proceed as to the remaining but unresolved claims, to wit:
SEC. 5. Separate judgments. - When
more than one claim for relief is presented in an action, the court, at any
stage, upon a determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence which is the
subject matter of the claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In
case a separate judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the benefit thereof to
the party in whose favor the judgment is rendered. (Bold underscoring supplied
for emphasis)
A partial summary judgment like that rendered on
January 30, 2012 by the Makati RTC was in the category of a separate judgment.
Such judgment did not adjudicate damages, and still directed that further
proceedings be had in order to determine the damages to which Globe Asiatique
and Delfin Lee could be entitled. Section 4, Rule 35 of the Rules of Court thus
came into operation. Section 4 states:
SEC. 4. Case not fully adjudicated on
motion. - If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial is necessary the
court at the hearing of the motion, by examining the pleadings and the evidence
before it and by interrogating counsel shall ascertain what material facts
exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts
accordingly. (Bold underscoring supplied for emphasis)
Worthy to emphasize is that the rendition of a
summary judgment does not always result in the full adjudication of all the issues
raised in a case.[65] In such event, a partial summary judgment
is rendered in the context of Section 4, supra. Clearly, such a
partial summary judgment - because it does not put an end to the action at law
by declaring that the plaintiff either has or has not entitled himself to
recover the remedy he sues for - cannot be considered a final judgment. It
remains to be an interlocutory judgment or order, instead of a final judgment,
and is not to be dealt with and resolved separately from the other aspects of
the case.
In Pahila-Garrido v. Tortogo,[66] the distinctions
between final and interlocutory orders were delineated thusly:
The distinction between a final order and an
interlocutory order is well known. The first disposes of the subject matter in
its entirety or terminates a particular proceeding or action, leaving nothing
more to be done except to enforce by execution what the court has determined,
but the latter does not completely dispose of the case but leaves something
else to be decided upon. An interlocutory order deals with preliminary matters
and the trial on the merits is yet to be held and the judgment rendered. The
test to ascertain whether or not an order or a judgment is interlocutory or
final is: does the order or judgment leave something to be done in the
trial court with respect to the merits of the case? If it does, the order
or judgment is interlocutory; otherwise, it is final.
What was the proper recourse against the partial
summary judgment?
Considering that the January 30, 2012 partial summary judgment was
interlocutory, the remedy could not be an appeal, for only a final judgment or
order could be appealed. Section 1, Rule 41 of the Rules of Court makes
this clear enough by expressly forbidding an appeal from being taken from such
interlocutory judgment or order, to wit:
Section 1. Subject of appeal. - An
appeal may be taken from a judgment or final order that completely disposes of
the case, or of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
x x x x
(f) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third party
complaints, while the main case is pending, unless the court allows an appeal
therefrom; and
x x x x
In any of the foregoing circumstances, the aggrieved party may file an
appropriate special civil action as provided in Rule 65.
Consequently, the
interlocutory January 30, 2012 summary judgment could be assailed only
through certiorari under Rule 65 of the Rules of Court.
Thus, the HDMF properly instituted the special civil action for certiorari to
assail and set aside the resolutions dated January 30, 2012 and December 11,
2012 of the Makati RTC.
1.b.
The Yorac Law Firm had no authority to file the HDMF's motion for reconsideration
of the January 30, 2012 summary judgment rendered by the Makati RTC
The HDMF is a government-owned and -controlled corporation (GOCC) performing
proprietary functions with original charter or created by special law,
specifically Presidential Decree (P.D.) No. 1752, amending P.D. No. 1530.[67] As a GOCC, the HDMF's legal matters are to be handled by the
Office of the Government Corporate Counsel (OGCC),[68] save for some extraordinary or exceptional circumstances
when it is allowed to engage the services of private counsels, provided such
engagement is with the written conformity of the Solicitor General or the
Government Corporate Counsel and the written concurrence of the Commission on
Audit (COA).[69]
In Phividec Industrial Authority v. Capitol Steel Corporation,[70] the Court underscored that the best evidence to prove the
COA's concurrence with the engagement of a private lawyer or law firm was the
written concurrence from the COA itself, viz.:
Petitioners primarily rely on a certified true
copy of an Indorsement issued by COA Regional Office No. 10 as proof of written
concurrence on the part of the COA. All that it contains is a second-hand claim
that the COA General Counsel had allegedly concurred in the retainer contract
between PHIVIDEC and Atty. Adaza. The written concurrence itself which may be
the best evidence of the alleged concurrence was not presented. It is also
worth noting that the said Indorsement was dated 4 June 2002, or approximately
two years after the filing of the expropriation case by Atty. Adaza.
The records reveal that although the OGCC
authorized the HDMF to engage the services of the Yorac Law Firm, the HDMF did
not sufficiently prove that the written concurrence of the COA had been
obtained.
To substantiate its claim of the COA's concurrence with the engagement of the
Yorac Law Firm's legal services, the HDMF presented the certification dated
January 10, 2013,[71] viz.:
CERTIFICATION
This is to certify that the Commission on Audit (COA) has concurred in the Retainer
Agreement entered into by and between the Home Development Mutual Fund (HDMF)
and Yorac, Arroyo, Chua, Caedo & Coronel Law Firm, for the latter to
provide legal services to the HDMF in connection with the cases filed by or
against Globe Asiatique Realty Holdings Corporation, Mr. Delfin S. Lee, its
officers, employees and agents, and such other cases that arose out of or in
relation to the Globe Asiatique Realty Holdings Corporation issues.
This certification is issued to attest to the truth of the foregoing and for
whatever legal purposes it may serve.
10 January 2013
(signed)
ATTY. FIDELA M. TAN
Corporate Auditor
It is immediately discernible, however, that the
certification was merely the attestation by Atty. Tan that COA had concurred in
the retainer agreement entered into by and between the HDMF and the Yorac Law
Firm. Such attestation did not establish the written concurrence of the COA on
the engagement of the Yorac Law Firm because it did not state that the copy was
a correct copy of the original considering that no copy of COA's written
concurrence was actually attached to the January 10, 2013 certification. Also,
it did not thereby appear that Atty. Tan was the custodian of the records of
COA. As the Makati RTC further observed, the attestation had not been made
under the official seal of COA but printed only on the joint letterhead of the
HDMF and COA, with the latter's address being indicated to be in Mandaluyong
City when the COA's office was actually located in Commonwealth Avenue, Quezon
City.[72]
Atty. Tan's attestation of the COA's purported concurrence had no evidentiary
value due to its non-conformity with the requirements of Section 24 and Section
25, Rule 132 of the Rules of Court for presenting the record
of a public document, to wit:
Section 24. Proof of official record. - The record of public
documents referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. x x x
Section 25. What attestation of copy must state.
- Whenever a copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there
be any, or if he be the clerk of a court having a seal, under the seal of such
court.(26a)
The foregoing bolstered the fact that the attestation, being at best the
second-hand opinion of Atty. Tan as a corporate auditor who did not have the
copy of the supposed COA concurrence, could not stand as the written
concurrence of the COA contemplated by law for the purpose.
Nonetheless, even if the January 10, 2013 certification was to be regarded as
the written concurrence of the COA, the fact that it was issued and
presented after the Yorac Law Firm had entered its appearance
on June 17, 2011 as counsel of the HDMF should not go unnoticed.[73] Records reveal that as of December 7, 2011, the COA was
still in the process of evaluating the request for the concurrence on the
hiring by the HDMF of the Yorac Law Firm.[74] This forthwith
contravened the specific requirement that the written conformity and
acquiescence of the Solicitor General or the Government Corporate Counsel, and
the written concurrence of the COA should first be secured prior to
the hiring or employment of the private lawyer or law firm.[75]
In view of the HDMF's failure to secure the written concurrence of the COA, the
Yorac Law Firm could not have been considered as authorized to represent the
HDMF. With the filing of the HDMF's motion for reconsideration vis-a-vis the
January 30, 2012 summary judgment of the Makati RTC being unauthorized, the CA
did not err in upholding the Makati RTC's treatment of the HDMF's motion as a
mere scrap of paper.
1.c
The broader interest of justice and the peculiar legal and equitable
circumstances herein justified the relaxation of technical rules
The import of failing to file the motion for reconsideration on the part of the
HDMF meant that the 60-day period to initiate the petition for certiorari should
be reckoned from its receipt of the assailed January 30, 2012 summary judgment.
Since the HDMF actually filed the petition for certiorari on
January 18, 2013, and thus went beyond the reglementary period, the petition
should be dismissed for being filed out of time.
There are instances, however, when the rigidity of the rule requiring the
petition for certiorari to be filed within 60 days from the
receipt of the judgment, order, or resolution sought to be thereby assailed has
been relaxed, such as: (1) when the most persuasive and weighty reasons obtain;
(2) when it is necessary to do so in order to relieve a litigant from an
injustice not commensurate with his failure to comply with the prescribed procedure;
(3) in case of the good faith of the defaulting party by immediately paying
within a reasonable time of the default; (4) when special or compelling
circumstances exist; (5) when the merits of the case so demand; (6) when the
cause of the delay was not entirely attributable to the fault or negligence of
the party favored by the suspension of the rules; (7) when there is no showing
that the review sought is merely frivolous and dilatory; (8) when the other
party will not be unjustly prejudiced thereby; (9) m case of fraud, accident,
mistake or excusable negligence without the appellant's fault; (10) when the
peculiar legal and equitable circumstances attendant to each case so require;
(11) when substantial justice and fair play are thereby served; (12) when the
importance of the issues involved call for the relaxation; (13) in the exercise
of sound discretion by the court guided by all the attendant circumstances and
(14) when the exceptional nature of the case and strong public interest so
demand.[76]
Herein, the broader interest of justice and the attendant peculiar legal and
equitable circumstances dictated that the HDMF's petition for certiorari be
resolved on its merits despite its filing beyond the reglementary period. The
HDMF believed in good faith that it had duly filed the motion for
reconsideration vis-a-vis the January 30, 2012 summary judgment. Although the
Makati RTC noted the HDMF's failure to secure the COA's concurrence, and
resolved to treat the HDMF's motion for reconsideration as a mere scrap of
paper, the reglementary period to file the petition for certiorari had
already lapsed, such failure to file on time was not entirely attributable to
the fault or negligence of the HDMF.
2.
There was no probable cause for the filing of the information for
syndicated estafa and
for the issuance of the warrants of arrest for syndicated estafa against respondents
Delfin Lee, Dexter, Sagun and Alvarez were charged with syndicated estafa, along with
Cristina Salagan, on the basis of the findings of the DOJ that Globe Asiatique
had violated its warranties under the FCAs and the July 13, 2009 MOA; that
Globe Asiatique had submitted spurious and questionable documents concen1ing
the qualifications of its buyers; that Globe Asiatique had employed fictitious
buyers to obtain funds from the HDMF; and that Globe Asiatique had failed to
remit to the HDMF the monthly housing loan amortizations of its buyers in the
Xevera Project in Pampanga.[77]
The DOJ concluded thusly:
Given the foregoing the above-named respondents
may be charged with the crime of "syndicated estafa" as they fall within the legal
definition of a syndicate. A syndicate is defined as consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme and the defraudation results in the
misappropriation of money contributed by stockholders, or members of rural
banks, cooperative, "samahang nayon(s)", or farmers association, or
of funds solicited by corporations/associations from the general public.
(Paragraph 1, Section 1, P.D. No. 1689; People of the Philippines v.
Vicente Menil, G.R. Nos. 115054-66, September 12, 2009).
x x x x
Having earlier established respondents' commission of estafa, it is pristine clear that the 1st and
2nd elements of the offense of syndicated estafa has
already been satisfied in the instant case. Relative to the 3rd element,
we believe that HDMF falls under the entities listed in P.D. 1689 that can be
victimized under such law, as the provision specifically includes entities
which solicited funds from the general public. x x x
It is our considered view that HDMF is, in all respect, a corporation that
solicited funds from the general public, which respondents defrauded through
the execution of their illegal scheme. We find as childish respondents' Delfin
and Dexter Lee's argument that the Pag-Ibig fund is a mandatory contribution
and does not fall under the term "solicited funds from the public."
It bears to highlight that P.D. 1689 does not distinguish whether the solicited
fund is a voluntary or mandatory contribution. Rather, the essential point is
that the funds used by HDMF came from the general public.[78]
On its part, the Pampanga RTC found probable
cause for the issuance of warrants of arrest against the respondents only
because -
The records would show a huge amount of money
that was transferred from the coffers of the PAG-IBIG FUND and released to the
GLOBE ASIATIQUE through a complex scheme involving fraudulent buyers at a scale
and over a period of time that could only have been accomplished by and through
the sustained supervision and action in concert of a group of persons for the
attainment of the same criminal objective. Hence, the Court finds probable
cause for the existence of a syndicated estafa.[79]
The crucial questions before us relate to: (1)
the DOJ's finding of probable cause for the filing of the information against
Sagun; and (2) the Pampanga RTC's judicial determination of probable cause for
the issuance of the warrant of arrest against the respondents.
The concept of probable cause has been discussed in Napoles v. De Lima[80] as follows:
x x x During preliminary investigation, the
prosecutor determines the existence of probable cause for filing an information
in court or dismissing the criminal complaint. As worded in the Rules of Court,
the prosecutor determines during preliminary investigation whether "there
is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial." At this stage, the determination of probable cause is an executive
function. Absent grave abuse of discretion, this determination cannot be
interfered with by the courts. This is consistent with the doctrine of
separation of powers.
On the other hand, if done to issue an arrest warrant, the determination of
probable cause is a judicial function. No less than the Constitution commands
that "no . . . warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce[.]" This
requirement of personal evaluation by the judge is reaffirmed in Rule 112,
Section 5 (a) of the Rules on Criminal Procedure:
SEC. 5. When warrant of arrest may issue.
-
(a) By the Regional Trial Court. -
Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment order when the complaint or
information was filed pursuant to section 6 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint
or information. (Emphasis supplied)
Therefore, the determination of probable cause
for filing an information in court and that for issuance of an arrest warrant
are different. Once the information is filed in court, the trial court acquires
jurisdiction and "any disposition of the case as to its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
Court."
While the courts are generally not permitted to
substitute their own judgments for that of the Executive Branch in the
discharge of its function of determining the existence of probable cause during
the preliminary investigation,[81] the intervention
of the courts may be permitted should there be grave abuse of discretion in
determining the existence of probable cause on the part of the investigating
prosecutor or the Secretary of Justice.
Thus, in order to settle whether or not the CA correctly reversed the August
10, 2011 Review Resolution of the DOJ insofar as it found
probable cause to charge Sagun with syndicated estafa, and whether or not the warrants of
arrest issued against the respondents should be quashed, it is imperative to
discuss the nature of syndicated estafa.
Section 1 of P.D. No. 1689 defines syndicated estafa in the following manner:
SECTION 1. Any person or persons who shall
commit estafa or
other forms of swindling as defined in Article 315 and 316 of the Revised Penal
Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa)
is committed by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme, and the defraudation results in the misappropriation of money
contributed by stockholders or members of rural banks, cooperative,
"samahang nayon(s)", or farmer's association, or of funds solicited
by corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if
the amount of the fraud exceeds 100,000 pesos.
P.D. No. 1689 seeks to impose a harsher penalty
on certain forms of swindling, more particularly, syndicated estafa. The
preamble of the decree recites:
WHEREAS, there is an upsurge in the commission
of swindling and other forms of frauds in rural banks, cooperatives,
"samahang nayon(s)", and farmers' associations or
corporations/associations operating on funds solicited from the general public;
WHEREAS, such defraudation or misappropriation of funds contributed by
stockholders or members of such rural banks, cooperatives, "samahang
nayon(s)", or farmers' associations, or of funds solicited by
corporations/associations from the general public, erodes the confidence of the
public in the banking and cooperative system, contravenes the public interest,
and constitutes economic sabotage that threatens the stability of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at
least minimized, by imposing capital punishment on certain forms of swindling
and other frauds involving rural banks, cooperatives, "samahang
nayon(s)", farmers' associations or corporations/associations operating on
funds solicited from the general public.
P.D. No. 1689 condemns the taking by fraud or
deceit of funds contributed by members of rural banks, cooperatives, samahang
nayon or farmers' associations, or of funds solicited by corporations
or associations from the general public as such taking poses a serious threat
to the general public. The elements of syndicated estafa are: (a) estafa or other forms of swindling,
as defined in Articles 315 and 316 of the Revised Penal Code, is
committed; (b) the estafa or
swindling is committed by a syndicate of five or more persons; and (c)
defraudation results in the misappropriation of moneys contributed by the
stockholders, or members of rural banks, cooperative, samahang nayon(s),
or farmers' associations, or of funds solicited by corporations/associations
from the general public.[82]
In relation thereto, Article 315(2)(a) of the Revised Penal Code specifies
that:
Art. 315. Swindling (estafa). - Any
person who shall defraud another by any means mentioned herein below shall be
punished by:
x x x x
2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely
pretending to possess power, influence, qualifications, property, credit,
agency, business, or imaginary transactions; or by means of other similar
deceits.
x x x x
The elements of estafa by
means of deceit under Article 315(2)(a) of the Revised Penal Code are,
namely: (a) that there must be a false pretense or fraudulent representation as
to his power, influence, qualifications, property, credit, agency, business or
imaginary transactions; (b) that such false pretense or fraudulent
representation was made or executed prior to or simultaneously with the
commission of the fraud; (c) that the offended party relied on the false
pretense, fraudulent act, or fraudulent means and was induced to part with his
money or property; and (d) that as a result thereof, the offended party
suffered damage.[83]
Based on the foregoing elements of syndicated estafa, the Court holds that the CA did
not err in reversing the August 10, 2011 Review Resolution of
the DOJ insofar as Sagun was concerned and in quashing the warrants of arrest
issued against the respondents. In the same manner, we find and so hold that
the CA erred in upholding the propriety of the issuance of the warrant of
arrest against Salagan.
2.a
In the case of the respondents, there was no syndicate as defined under P.D.
No. 1689
A syndicate is defined by P.D. No. 1689 as consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme.[84] The Court has
clarified in Remo v. Devanadera[85] that in order for
any group to be considered a syndicate under P.D. No. 1689 -
x x x [T]he perpetrators of an estafa must
not only be comprised of at least five individuals but must have also used the
association that they formed or managed to defraud its own stockholders,
members or depositors. Thus:
On review of the cases applying the law, we note
that the swindling syndicate used the association that they manage to
defraud the general public of funds contributed to the association. Indeed,
Section 1 of Presidential Decree No. 1689 speaks of a syndicate formed with the
intention of carrying out the unlawful scheme for the misappropriation of the
money contributed by the members of the association. In other words, only
those who formed [or] manage associations that receive contributions from the
general public who misappropriated the contributions can commit
syndicated estafa.
x x x. (Emphasis supplied).
x x x x
Dissecting the pronouncement in Galvez for
our present purposes, however, we are able to come up with the following
standards by which a group of purported swindlers may be considered as a
syndicate under PO No. 1689:
1.
They must be at least
five (5) in number;
2.
They must have formed or
managed a rural bank, cooperative, "samahang nayon," farmer's
association or any other corporation or association that solicits funds from
the general public.
3.
They formed or managed
such association with the intention of carrying out an unlawful or illegal act,
transaction, enterprise or scheme i.e., they used the very
association that they formed or managed as the means to defraud its own
stockholders, members and depositors.
None of the three abovementioned standards for
determining the existence of a syndicate was present.
Delfin Lee, Dexter, Sagun, and Salagan were, respectively, the President/Chief
Operating Officer, Executive. Vice-President, Head of the Documentation
Department, and Head of the Accounting/Finance Department of Globe Asiatique.[86] In view of their number being under five, the original
charge brought against them was only for simple estafa. It was only in the assailed Review
Resolution of August 10, 2011 that SDSP Villanueva recommended the
filing of the charge for syndicated estafa due to the addition of Atty.
Alvarez as a co-respondent, thereby increasing the number of the respondents
to at least five. But Atty. Alvarez was the Manager of the
HDMF's Foreclosure Department[87] whose only
connection with Globe Asiatique was by reason of his having rendered notarial
services for the latter.[88] If Atty. Alvarez was not related to Globe
Asiatique either by employment or by ownership, he could not be considered as
part of the syndicate supposedly formed or managed to defraud its stockholders,
members, depositors or the public. This alone immediately removed the
respondents' supposed association from being found and
considered as a syndicate in the context of P.D. No. 1689.
Even assuming that Atty. Alvarez was juridically connected with Globe Asiatique
in the context of P.D. No. 1689, the association of the respondents did not
solicit funds from the general public. Globe Asiatique was incorporated in 1994
as a legitimate real-estate developer "to acquire by purchase, lease,
donation or otherwise, to own, use, improve, develop, subdivide, sell,
mortgage, exchange, lease, develop and hold for investment or otherwise, real
estate of all kinds, whether improve, manage, or otherwise dispose of
buildings, houses, apartments, and other structures of whatever kind, together
with their appurtenances."[89] It is quite
notable, too, that there was no allegation about Globe Asiatique having been
incorporated to defraud its stockholders or members. In fact, the HDMF, the
only complainant in the estafa charges,
was not itself a stockholder or member of Globe Asiatique.
Moreover, the DOJ concluded that it was the HDMF itself, not Globe Asiatique,
that had solicited funds from the public, to wit:
x x x HDMF falls under the entities listed in PD
1689 that can be victimized under such law, as the provisions specifically
includes entities which solicited funds from the general public. x x x
x x x x
It is our considered view that HDMF is, in all respect, a corporation that
solicited funds from the general public, which respondents defrauded through
the execution of their illegal scheme.
We find as childish respondents' Delfin and Dexter Lee's argument that the
Pag-ibig fund is a mandatory contribution and does not fall under the term
"solicited funds from the public." It bears to highlight that P.D.
1689 does not distinguish whether the solicited fund is voluntary or mandatory
contribution. Rather, the essential point is that the funds used by HDMF came
from the general public.[90]
The funds solicited by HDMF from the public were
in the nature of their contributions as members of HDMF and had nothing to do
with their being a stockholder or member of Globe Asiatique.
It is further worth noting that the funds supposedly misappropriated did not
belong to Globe Asiatique's stockholders or members, or to the general public,
but to the HDMF. The pecuniary damage pertained to the FCLs extended to Globe
Asiatique through ostensibly fictitious buyers and unremitted monthly housing
loan amortizations for the Xevera Project in Pampanga that were supposedly
collected by Globe Asiatique in behalf of the HDMF pursuant to the FCLs and
MOA.
Based on the established circumstances, therefore, it becomes inevitable for
the Court to affirm the CA's following conclusion that:
x x x [T]he statement made by public respondent
that there is probable cause because "x x x a huge amount of money was
transferred from the coffers of respondent HDMF and released to GA through a
complex scheme x x x that could only have been accomplished by and through the
sustained supervision and action in concert of a group of persons for the
attainment of the same criminal objective," to be in the nature of a speculation
only and carries no weight in the determination of probable cause.
Jurisprudence dictates that in the determination of probable cause, the same
should be based on hard facts and solid evidence and not dwell on
possibilities, suspicion and speculation. From the afore quoted paragraph
alone, petitioner's (Delfin Lee) participation, if there was any, in the
offense for which he was indicted, was not established or ascertained. Worse,
petitioner was not even named either were his cohorts in the alleged defrauding
of respondent HDMF.
Petitioner Lee and his co-accused were charged with syndicated estata.
For estafa to
have been committed by a syndicate, the act must be committed by five or more
persons. A considered scrutiny of the assailed Resolution by public respondent
which found probable cause to issue a warrant of arrest against petitioner Lee
and his co-accused, shows that there was no mention that the acts
constituting estafa were
done by five or more persons. The resolution merely mentioned "could only
have been accomplished by and through the sustained supervision and action in
concert of a group of persons for the attainment of the same criminal
objective." Moreover, the amount of damage incurred by respondent
HDMF was not ascertained. It goes without saying that public respondent did not
take it upon herself to determine, based on the evidence submitted, the exact
amount of damage incurred by respondent HDMF. Public respondent merely made a
sweeping statement that a huge amount of money was transferred from the coffers
of the PAG-IBIG Fund to GA.
Under the canons of
statutory construction, indeed, the determination of the purpose of the law is
a step in the process of ascertaining the intent or meaning of the enactment,
because the reason for the enactment must necessarily shed considerable light
on "the law of the statute," i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and purpose,
and the courts should seek to carry out this purpose rather than to defeat it.[91] Given the rationale and purpose behind the enactment of P.D.
No. 1689, it becomes inevitable to conclude that the crime of syndicated estafa can
only be committed by the enumerated groups created for the sole purpose of
defrauding its members through misappropriating the funds solicited from and
contributed by them. Evidently, the evil sought to be prevented by P.D. No.
1689 does not exist in this case.
2.b
Notwithstanding the absence of a syndicate, the respondents made false representations
that gave rise to probable cause for simple estafa against them
In Galvez v. Court of Appeals,[92] the Court has
emphasized that swindling may fall within the ambit of P.D. No. 1689 if it is
committed through an association. On the other hand, Article
315(2)(a) of the Revised Penal Code applies regardless of the
number of the accused when: (a) the entity soliciting funds from the
general public is the victim and not the means through which the estafa is
committed, or (b) the offenders are not owners or employees who used the
association to perpetrate the crime.
Having shown that the alleged misappropriation was not committed through Globe
Asiatique, we now address whether or not the acts of the respondents gave rise
to probable cause for simple estafa under Article 315(2)(a) of the Revised
Penal Code.
An examination of the records reveals that there is sufficient basis to support
a reasonable belief that the respondents were probably guilty of simple estafa. The first
three elements of estafa under
Article 315(2)(a) of the Revised Penal Code - (a) that there
must be a false pretense or fraudulent representation as to his power,
influence, qualifications, property, credit, agency, business or imaginary
transactions; (b) that such false pretense or fraudulent representation was
made or executed prior to or simultaneously with the commission of the fraud;
and (c) that the offended party relied on the false pretense, fraudulent act,
or fraudulent means and was induced to part with his money or property -
obtained in this case.
The nature and character of deceit or fraud were explained in Lateo v.
People,[93] to wit:
[F]raud in its general sense is deemed to
comprise anything calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust, or confidence
justly reposed, resulting in damage to another, or by which an undue and
unconscientious advantage is taken of another. It is a generic term embracing
all multifarious means which human ingenuity can device, and which are resorted
to by one individual to secure an advantage over another by false suggestions
or by suppression of truth and includes all surprise, trick, cunning,
dissembling and any unfair way by which another is cheated. And deceit is the
false representation of a matter of fact whether by words or conduct, by false
or misleading allegations, or by concealment of that which should have been
disclosed which deceives or is intended to deceive another so that he shall act
upon it to his legal injury.
The first two elements of estafa under Article 315(2)(a) of
the Revised Penal Code are satisfied if the false pretense or
fraudulent act is committed prior to or simultaneously with the commission of
the fraud, it being essential that such false statement or representation
constitutes the very cause or the only motive that induces the offended party
to part with his money.[94]
In this connection, the DOJ underscored in its assailed Review
Resolution that the fraudulent scheme employed by the respondents
involved the "special buyers" arrangement. According to the sinumpaang
salaysay of witnesses Francisco de la Cruz and Veniza Santos Panem,
former employees of Globe Asiatique, the "special buyers" arrangement
required:
x x x those who are not yet members of Pag-ibig
Fund but who are paid by GA to apply for, and become members of the Fund in
exchange of P5,000.00 so that their names/membership can be used to take out a
housing loan from Pag-ibig of units from housing projects of GA. They assert
that these special buyers have really no intention to buy housing units from GA
projects but merely lend their Pag-ibig Fund membership to GA for a fee on
condition that they will not apply for a loan with Pag-Ibig for a period of
two (2) years. The agents/employees of GA are the ones who recruit these
"special buyers" also for a commission. They explain that once
recruited, these "special buyers" are told to sign loan documents for
Pag-Ibig but they will not occupy the housing units for which they applied for
a housing loan. These units taken out by Pag-ibig for GA's "special
buyers" are then sold to real buyers who buy direct from GA. Whenever real
buyers complaint that the units they bought had not yet been taken-out, they
are made to execute an Affidavit of Undertaking that they are
willing to assume the balance on the loan of the "special buyer" and
GA will make it appear to Pag-Ibig that the "special buyer" has
changed his mind so that the property could then be transferred to the real
buyer. They further claim that there are more than "special buyers"
than real buyers of GA and that its owners, respondents Delfin and Dexter Lee,
themselves ordered the employees to recruit "special buyers".
Witness Panem also asserted in her Sinumpaang Salaysay that
"special buyers" are also employed by GA in its transactions with
banks, like the RCBC and PNB. One of the enticement for these "special
buyers", aside from the P5,000.00 fee, is that they are assured that they
will not pay for the housing loan they applied for with Pag-Ibig as in fact it
is GA that pays for their housing loans. She also alleged that GA's employees
sometimes use fictitious names as "special buyers".[95]
Allegedly using the "special buyers"
scheme, Globe Asiatique entered into the FCAs with the HDMF during the period
from August 12, 2008 to July 10, 2009 wherein Globe Asiatique represented that:
(a) the buyers of its real estate projects were members of Pag-Ibig, hence,
qualified to apply for the takeout loans under the Pag-Ibig Housing Loan
Program; (b) the members-borrowers and their respective housing loan
applications had been properly evaluated and approved in accordance with the
applicable guidelines of the Pag-Ibig Housing Loan Program prior to their
endorsement to the Pag-Ibig Fund; (c) that all documents submitted to the
Pag-Ibig Fund, inclusive of the individual titles and the corresponding Deeds
of Assignment, were valid, binding, and enforceable in all other respects that
they purported to be; (d) that any person or agent employed or allowed to
transact or do business in its behalf had not committed any act of
misrepresentation; and (e) that all pertinent laws, rules and regulations had
been complied with, among others.[96] As the result
thereof, the HDMF extended the FCLs in favor of Globe Asiatique amounting to
P2.9 billion.
On July 13, 2009, the MOA was forged between the HDMF and Globe Asiatique for
the latter to again avail of a loan takeout from the HDMF. Accordingly,
additional FCAs were extended to Globe Asiatique totaling P3.55 billion. While
the MOA did not contain the same representations made in the previous FCAs, it
nevertheless required Globe Asiatique to undertake the following corrective
measures in case defects in the HDMF membership and housing loan eligibilities of
the buyers should arise, namely:
1) Require the borrower to complete the required
number of contributions, in case the required 24 monthly contributions is not
met;
2) Require the borrower to update membership contributions, in case the
membership status is inactive;
3) Require the borrower to update any existing Multi-Purpose Loan (MPL) if its
in arrears or pay in full if the same has lapsed;
4) Buyback the account in case the member has a HDMF housing loan that is
outstanding, cancelled, bought back, foreclosed or subject of dacion-en-pago.[97]
Had Globe Asiatique, through the respondents,
not made the foregoing representations and undertaking, the HDMF would not have
entered into the FCAs and granted the loan takeouts to Globe Asiatique to its
damage and prejudice.
We next determine the individual participation of the respondents in the
"special buyers" scheme.
In Ching v. Secretary of Justice,[98] the Court declared that corporate officers or employees
through whose act, default or omission the corporation commits a crime were
themselves individually guilty of the crime. The Court expounded why:
The principle applies whether or not the crime
requires the consciousness of wrongdoing. It applies to those corporate agents
who themselves commit the crime and to those, who, by virtue of their
managerial positions or other similar relation to the corporation, could be
deemed responsible for its commission, if by virtue of their relationship to
the corporation, they had the power to prevent the act. Moreover, all parties
active in promoting a crime, whether agents or not, are principals. Whether
such officers or employees are benefited by their delictual acts is not a
touchstone of their criminal liability. Benefit is not an operative fact.
The DOJ aptly noted that the following acts of
the respondents rendered them criminally accountable for perpetrating the
"special buyers" scheme and causing pecuniary damage to the
HDMF: Delfin Lee, for signing the FCAs and MOA in behalf of Globe
Asiatique, and the checks issued by Globe Asiatique to the "special
buyers" and the HDMF;[99] Dexter, for giving the orders to
recruit "special buyers" and co-signing those checks issued to the
special buyers and HDMF;[100] Sagun, head of Globe Asiatiques's
Documentation Department, for collating the documents submitted by the
borrowers/buyers, checking if the same are complete and duly accomplished, and
for verifying whether or not said borrowers/buyers are indeed Pag-Ibig members
with updated contributions or existing housing loans[101] and Salagan, head of Globe Asiatique's
Accounting/Finance Department, for reviewing all requests for payment from
on-site projects and preparing the corresponding checks ensuring that all loan
takeouts are duly recorded, and that amortizations are timely remitted to HDMF.[102]
We agree that the concerted acts of the respondents could manifest a common
criminal design to make it appear that Globe Asiatique had numerous qualified
borrowers/buyers that would satisfy the HDMF's conditions for the loan
takeouts. Their acts, taken collectively, would probably support a charge of
conspiracy, and suggest that they participated in the transactions with a view
to furthering the common design and purpose.[103]
As for Atty. Alvarez, we do not subscribe to the CA's view that his act of
notarizing various documents, consisting of the individual buyer's affidavit of
income, promissory note and developer's affidavit, which were material for the
processing and approval of the transactions,[104] was insufficient to
establish his having been part of the conspiracy in the execution of the
"special buyers" scheme. In our view, the DOJ had reasonable basis to
hold against him thusly:
x x x Atty. Alvarez knew, participated and
consented to the illegal scheme perpetrated by respondents Delfin and Dexter
Lee, Christina Sagun and Cristina Salagan. It should be underscored that Atty.
Alvarez notarized crucial pieces of documents, consisting of the buyer's
affidavit of income, promissory note, and developer's affidavit (by Ms.
Cristina Sagun) alleging compliance with the conditions set by HDMF, all of
which are essential for the processing and approval of the purported
transaction. We also find the defense of Atty. Alvarez as self-serving, to say
the least, considering that part of his job as a notary public is to ascertain
the identity of the affiant appearing before him. As it turns out, a large
number of the said affiants are either fictitious and/or non-existing, thereby
enabling the execution of the grand scheme of his co-respondents. It bears to
note that his actions, apart from evidencing his conspiracy, assent and/or
cooperation in the accomplishment of the fraud, also constitutes a clear
violation of Section 7, Paragraph B (2) of Republic Act No. 6713. also known as
the Code of Conduct and Ethical Standards for Public Officials and Employees.[105]
In view of the foregoing, the amendment of the
information to charge simple estafa is warranted pursuant to Hao v. People,[106] to wit:
With our conclusion that probable cause existed
for the crime of simple estafa and
that the petitioners have probably committed it, it follows that the issuance
of the warrants of arrest against the petitioners remains to be valid and
proper. To allow them to go scot-free would defeat rather than promote the
purpose of a warrant of arrest, which is to put the accused in the court's
custody to avoid his flight from the clutches of justice.
Moreover, we note that simple estafa and syndicated estafa are not two entirely different
crimes. Simple estafa is
a crime necessarily included in syndicated estafa. An offense is necessarily included
in another offense when the essential ingredients of the former constitute or
form a part of those constituting the latter.
Under this legal situation, only a formal amendment of the filed information
under Section 14, Rule 110 of the Rules of Court is necessary; the warrants of
arrest issued against the petitioners should not be nullified since probable
cause exists for simple estafa.
3.
The conduct of the preliminary investigation by
the DOJ was invalidly enjoined
In support of its move to reverse and set aside the adverse resolutions of the
CA, the DOJ argues in C.A.-G.R. No. 208744 and C.A.-G.R.
No. 210095 that the CA should not have dismissed its petition
for certiorari for being allegedly filed out of time because
there existed special and compelling reasons to justify the relaxation of the
procedural rules. Worthy to note is that the CA had denied petitioner's motion
for special extension of time to file the petition for certiorari because
there was no compelling reason to extend the period for doing so.
Under Section 4,[107] Rule 65 of the Rules of Court,
as amended by A.M. No. 07-7-12-SC, any aggrieved party has a non-extendible
period of 60 days from receipt of the assailed decision, order or resolution
within which to file the petition for certiorari. The period is
non-extendible to avoid causing any unreasonable delay that would violate the
constitutional rights of parties to the speedy disposition of the case.[108] Regrettably, when the DOJ finally filed the petition
for certiorari during the extended period sought, the petition
lacked the proper docket number due to inadvertence, which prompted the CA to
assign a new docket number to the petition. This move on the part of the CA
resulted in the outright dismissal of the petition for having been filed beyond
the reglementary period.
In view of the obtaining circumstances, we find merit in the DOJ's argument.
In Vallejo v. Court of Appeals,[109] the Court allowed
the petition filed almost four months beyond the reglementary period to
proceed. We emphasized therein that meritorious cases should be allowed to
proceed despite their inherent procedural defects and lapses in keeping with
the principle that the rules of procedure were but tools designed to facilitate
the attainment of justice, and that the strict and rigid application of rules
that would allow technicalities to frustrate rather than promote substantial justice
must always be avoided. The Court explained that excusing a technical lapse and
affording the parties a review of the case to attain the ends of justice,
instead of disposing of the case on technicality and thereby causing grave
injustice to the parties, would be a far better and more prudent course of
action.
Time and again, the Court, in resolving the OSG's requests for extension, has
taken cognizance of the heavy workload of that office. It should not be any
different now. Worthy to note is that the OSG, representing the DOJ, offered
suitable explanations and apologies, like the associate solicitor in charge of
filing the petition having been rushed to the hospital and thus being denied
the opportunity to supervise or see to the filing of the intended petition.
Also, the omission of the docket number from the petition that was ultimately
filed did not look as if it was aimed either to delay the proceedings or to
confuse the CA. The explanation for the delay in the filing of the petition in
the CA tendered by the OSG thereon, coupled with its invocation of liberality
or the relaxation of the rules, was fully acceptable. As such, the petition
should be allowed to proceed. We further find that the CA's dismissal of the
petition was disproportionate to the inadvertence committed considering the
substantial merits of the DOJ's case. Verily, the petition deserves to be given
due course and resolved in view of the fact that the injunction issued by the
RTC against the DOJ on the conduct of the preliminary investigation was a
patent nullity on its very face.
We now go to the merits of the petitions in C.A.-G.R. No. 208744 and C.A.-G.R.
No. 210095.
The Pasig RTC issued the assailed April 10, 2013 order enjoining the DOJ from
proceeding with the preliminary investigation of the second, third, and fourth
complaints for syndicated estafa against Globe Asiatique, et al. because of its
impression that the summary judgment rendered by the Makati RTC in favor of
Globe Asiatique had effectively removed the indispensable element of damage
from the criminal complaints.[110] The Pasig RTC
undeniably gravely abused its discretion in issuing the writ of preliminary
injunction.
It is an established judicial policy that injunction cannot be used as a tool
to thwart criminal prosecutions because investigating the criminal acts and
prosecuting their perpetrators right away have always been in the interest of
the public. Such policy is intended to protect the public from criminal acts.
The Pasig RTC could not feign ignorance of such policy, especially considering
that the CA's previous ruling against its issuance of a writ of preliminary
injunction had been affirmed by this Court with finality. The CA also observed
then:
[I]njunction will not lie to enjoin a criminal
prosecution because public interest requires that criminal acts be immediately
investigated and protected (sic) for the protection of society. It is only in
extreme cases that injunction will lie to stop criminal prosecution. Public
respondent Judge anchored his issuance of the writ on the existence of a
prejudicial question. However, this Court finds that the facts and issues in
the Makati civil case are not determinative of Lee's guilt or innocence in the
cases filed before the DOJ. Verily public respondent Judge committed grave
abuse of discretion amounting to lack of or in excess of jurisdiction when he
issued the writ of preliminary injunction enjoining the DOJ from filing an
information of estafa against
Lee in the first DOJ case and from proceeding with the preliminary
investigation in the second DOJ case.[111]
We emphasize yet again that the conduct of a
preliminary investigation, being executive in nature, was vested in the DOJ. As
such, the injunction issued by the Pasig RTC inexcusably interfered with the
DOJ's mandate under Section 3(2), Chapter 1, Title III, Book IV of the Administrative
Code of 1987 to investigate the commission of crimes and to prosecute
the offenders.
Equally worthy of emphasis is that the ruling of the CA in C.A.-G.R. SP No.
121594 attained finality after the Court reviewed such ruling in G.R. No.
201360. Considering that the petitions against the DOJ arose from the same
factual milieu and sought the same relief, which was to restrain the DOJ from
conducting preliminary investigations against Globe Asiatique and its officers
and employees upon the complaints filed before the DOJ, and considering further
that the cases involved the same parties and reprised the arguments, the
doctrine of the law of the case certainly applied to bar a different outcome.
At the very least, the Pasig RTC should have been very well instructed thereby,
and should have avoided the incongruous situation of ignoring what was already
the clear law of the case.
The doctrine of the law of the case precludes departure in a subsequent
proceeding essentially involving the same case from a rule previously made by
an appellate court. Applying this doctrine, the Court in Land Bank of
the Philippines v. Suntay[112] held that:
We underscore that Land Bank v. Suntay (G.R.
No. 157903) was the appropriate case for the determination of the issue of the
finality of the assailed RARAD Decision by virtue of its originating from Land
Bank's filing on April 20, 2001 of its petition for judicial determination of
just compensation against Suntay and RARAD Miñas in the RTC sitting as a
Special Agrarian Court. Therein, Suntay filed a motion to dismiss mainly on the
ground that the petition had been filed beyond the 15-day reglementary period
as required by Section 11, Rule XIII of the Rules of Procedure of DARAB.
After the RTC granted the motion to dismiss, Land Bank appealed to the CA,
which sustained the dismissal. As a result, Land Bank came to the Court (G.R.
No. 157903), and the Court then defined the decisive issue to be: "whether
the RTC erred in dismissing the Land Bank's petition for the determination of
just compensation."
The Court ruled in favor of Land Bank. For both Land Bank and Suntay (including
his assignee Lubrica), the holding in Land Bank v. Suntay (G.R.
No. 157903) became the law of the case that now controlled the course of
subsequent proceedings in the RTC as a Special Agrarian Court. In Cucueco
v. Court of Appeals, the Court defined law of the case as "the opinion
delivered on a former appeal." Law of the case is a term
applied to an established rule that when an appellate court passes on a
question and remands the case to the lower court for further proceedings, the
question there settled becomes the law of the case upon subsequent appeal. It
means that whatever is once irrevocably established as the controlling legal
rule or decision between the same parties in the same case continues to be the
law of the case, whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the facts of the
case before the court. With the pronouncement in G.R. No. 157903 having
undeniably become the law of the case between the parties, we cannot pass upon
and rule again on the same legal issue between the same parties.[113]
Indeed, the issue
submitted for the Pasig RTC's determination had been resolved by the CA in
CA-G.R. SP No. 121594 to the effect that the Pasig RTC could not enjoin the DOJ
from proceeding with the preliminary investigation of the second complaint. As
far as the parties were concerned, therefore, the propriety of the DOJ's
conduct of the preliminary investigation was no longer an unresolved issue. But
by issuing the writ of preliminary injunction yet again to prevent the
preliminary investigation of the second and subsequent complaints by the DOJ,
the Pasig RTC acted with manifest whimsicality that amounted to gross and
patent abuse of discretion. Such action was void and ineffectual.
WHEREFORE, the Court GRANTS:
(1) The petition for review on certiorari in G.R. No. 209424
and, accordingly, ANNULS and SETS ASIDE the
decision promulgated on October 7, 2013 by the Court of Appeals in C.A.-G.R.
SP No. 128262; REVERSES the resolution of December 11, 2012 issued in
Civil Case No. 10-1120 by the Regional Trial Court, Branch 58, in Makati City
declaring the partial summary judgment rendered on January 30, 2012 final and
executory; PRONOUNCES that the partial summary judgment
rendered on January 30, 2012 may still be appealed by the aggrieved party upon
rendition of the final judgment in Civil Case No. 10-1120; and DIRECTS the
Regional Trial Court, Branch 58, in Makati City to conduct further proceedings
in Civil Case No. 10-1120 with dispatch; and
(2) The petitions for review on certiorari in G.R.
No. 208744 and G.R. No. 210095 and,
accordingly, REVERSES and SETS ASIDE the
resolution promulgated on July 8, 2013 in C.A.-G.R. SP No. 130404 denying the
motion for extension of the Department of Justice, and the resolution
promulgated on August 14, 2013 denying the motion to admit petition for certiorari filed
by the Department of Justice; LIFTS and QUASHES the
writ of preliminary injunction issued on April 10, 2013 by the Regional Trial
Court, Branch 167, in Pasig City enjoining the preliminary investigation for
the second, third and fourth criminal complaints filed against the respondents
on the ground that such writ of preliminary injunction was issued with grave
abuse of discretion amounting to lack of jurisdiction; DECLARES that
the Department of Justice may now resume the preliminary investigation of the
remaining criminal complaints against the respondents for simple estafa under
Article 315(2)(a) of the Revised Penal Code; and ORDERS the
Regional Trial Court, Branch 167, in Pasig City to dismiss Civil Case No. 73115
entitled Delfin S. Lee v. Department of Justice.
The Court PARTIALLY GRANTS the petitions for review on certiorari in G.R.
No. 205698, G.R. No. 205780, G.R. No. 209446, G.R. No. 209489, G.R. No. 209852,
G.R. No. 210143, G.R. No. 228452, G.R. No. 228730 and G.R. No.
230680 and, accordingly:
(1) DIRECTS the DEPARTMENT OF JUSTICE to
amend the information in Criminal Case No. 18480 entitled People of the
Philippines v. Delfin Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan,
and Atty. Alex Alvarez of the Regional Trial Court Branch 42, in San
Fernando City, Pampanga to charge respondents DELFIN S. LEE, DEXTER L.
LEE, CHRISTINA SAGUN, CRISTINA SALAGAN and ALEX M. ALVAREZ with
simple estafa under
Article 315(2)(a) of the Revised Penal Code; and
(2) ORDERS the Presiding Judge of the Regional Trial Court,
Branch 42, in San Fernando City, Pampanga to suspend proceedings in Criminal
Case No. 18480 pending the filing by the DEPARTMENT OF JUSTICE of
the amended information as directed herein, and to try the respondents as the
accused in Criminal Case No. 18480 in accordance therewith, without prejudice
to acting on any matter incidental to the conduct of the trial of a criminal
case, including applications for bail.
No pronouncement on costs of suit.
SO ORDERED.
Carpio, Acting C. J., See Dissenting Opinion.
Velasco, Jr., J., concur.
Leonardo-De Castro, J., I join the dissent of Justice Carpio.
Peralta, J., No part.
Del Castillo, J., I join J. Bernabe's separate concurring opinion.
Perlas-Bernabe, J., Please see separate opinion.
Leonen, J., I dissent. See separate opinion.
Jardeleza,** J., No part. No part prior OSG.
Caguioa, J., See separate concurring opinion.
Martires, J., I join the dissenting opinion of J. Carpio.
Tijam, J., Please see separate concurring opinion.
A. Reyes, Jr., J., I join Justice Carpio's dissenting opinion.
Gesmundo, J., I join Justice Bernabe's separate concurring opinion.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on July 31, 2018 a Decision, copy
attached herewith, was rendered by the Supreme Court in the above-entitled
cases, the original of which was received by this Office on August 28, 2018 at
2:30 p.m.
|
Very truly yours, |
|
|
(SGD) |
|
|
EDGAR O. ARICHETA |
|
|
|
Clerk of Court |
** No part, due to prior participation as Solicitor General.
[1] Rollo, G.R. No. 210143, pp.
4885A-4885B; it is to be noted that on June 7, 2017, the Court issued a
Resolution consolidating G.R. Nos. 228452 and 228730 with the other related
cases.
[2] In C.A.-G.R. SP No. 121346, C.A.-G.R. SP
No. 127553, C.A.-G.R. SP No. 127554 and C.A.-G.R. SP No. 127690.
[3] In C.A.-G.R. SP No. 130409.
[4] In C.A.-G.R. SP No. 128262.
[5] Rollo (G.R. No. 205698), Vol.
I, p. 26.
[6] Id. at 16.
[7] Id.
[8] Id. at 28.
[9] Rollo (G.R. No. 209852), Vol.
I, p. 17.
[10] Rollo (G.R. No. 209424), Vol.
II, pp. 598, 600.
[11] Id. at 601.
[12] Rollo (G.R. No. 205698), Vol.
I, p. 30.
[13] Id. at 30-31.
[14] Id. at 31.
[15] Rollo (G.R. No. 209852), Vol.
I, p. 18.
[16] Id. at 19.
[17] Docketed as I.S. No. XVI-INV-10J-00319
entitled National Bureau of Investigation (NBI)/Home Development Mutual
Fund (HDMF) vs. Globe Asiatique Realty Holdings Corp., et al.
[18] Rollo (G.R. No. 209852), Vol.
I, p. 20.
[19] The case was docketed as NPS No.
XV-05-INV-10L-00363 entitled National Bureau of investigation
(NBI)/Evelyn B. Niebres, et al. vs. Globe Asiatique Realty Holdings,
Corp./Delfin S. Lee, et al.
[20] Rollo (G.R. No. 209852), Vol.
I, p. 21.
[21] Id.
[22] Rollo (G.R. No. 209446), Vol.
I, p. 165.
[23] Rollo (G.R. No. 209852), Vol.
I, p. 21.
[24] Sagun later on impleaded the Pampanga RTC
in view of the eventual filing of the information against her in the RTC of
Pampanga on April 30, 2012.
[25] Rollo (G.R. No. 209446), Vol.
I, p. 15-16.
[26] On August 25, 2011, Delfin Lee filed an
Amended Petition in the Pasig RTC to enjoin the filing of the Information for
the first syndicated estafa case
based on the August 10, 2011 Review Resolution.
[27] Rollo (G.R. No. 209852), Vol.
I, p. 22.
[28] Id.
[29] Id. at 23-24.
[30] Id. at 24.
[31] Rollo (G.R. No. 208744), Vol.
I, p. 59
[32] Id. at 61-62.
[33] Rollo (G.R. No. 209852), Vol.
I, p. 24.
[34] Id. at 24-27.
[35] Id. at 27-29.
[36] Id. at 28-29.
[37] Id. at 30.
[38] Id. at 30-31.
[39] Id. at 19.
[40] Id. at 20.
[41] Id. at 22-23.
[42] Rollo (G.R. No. 209424), Vol.
I, p. 26.
[43] Id. at 64-65.
[44] Id. at 65-66.
[45] Rollo (G.R. No. 210095), Vol.
I, pp. 75-76.
[46] Rollo (G.R. No. 209424), Vol.
I, pp. 14-34; penned by Associate Justice Stephen C. Cruz with the concurrence
of Associate Justice Elihu A. Ybanez, and Associate Justice Danton Q. Bueser,
while Associate Justice Magdangal M. De Leon and Associate Justice Myra V.
Garcia Fernandez dissented.
[47] Id. at 32.
[48]Rollo (G.R. No. 205698), Vol. I, pp. 24-57; penned by Associate Justice
Angelita Gacutan with the concurrence of Associate Justice Mariflor Punzalan
Castillo and Associate Justice Francisco P. Acosta.
[49] ld. at 56-57.
[50] Rollo (G.R. No. 209446), Vol.
I, pp. 12-32; penned by Associate Justice Edwin D. Sorongon with the
concurrence of Associate Justice Hakim S. Abdulwahid and Associate Justice
Marlene Gonzales-Sison.
[51] Id. at 31-32.
[52] Rollo (G.R. No. 209852), Vol.
I, pp. 15-43; penned by Associate Justice Franchito N. Diamante and concurred
in by Associate Justice Agnes Reyes-Carpio and Associate Justice Melchor Q.C.
Sadang.
[53] Id. at 42-43.
[54] Rollo (G.R. No. 228730), Vol.
I, p. 108.
[55] Id. at 112-113.
[56] Rollo (G.R. No. 230680). Vol.
I, p. 358.
[57] Id. at 362.
[58] Id. at 365.
[59] Rollo (G.R. No. 209446), Vol.
VI, pp. 2484-2485, 2754-2755; Rollo (G.R. No. 210143), Vol. X,
pp. 4756-4758; Rollo (G.R. No. 228452), Vol. V, pp. 2261.
[60] Rollo (G.R. No. 210143), Vol.
X, p. 4932.
[61] Id. at 5217.
[62] Rollo (G.R. No. 209424), Vol.
II, pp. 770-773.
[63] Rollo (G.R. No. 209424), Vol.
III, pp. 1139-1141.
[64] Id. at 451-452.
[65] Philippine Business Bank v. Chua,
G.R. No. 178899, November 15, 2010, 634 SCRA 635, 646-649.
[66] G.R. No. 156358, August 17, 2011, 655 SCRA
553.
[67] See Home Development Mutual Fund
v. Commission on Audit, G.R. No. 142297, June 15, 2004, 432 SCRA 126, 132.
[68] Administrative Code of 1987, Book
IV, Title III, Chapter 3, Section 10 provides:
SECTION 10. Office of the Government Corporate
Counsel. - The Office of the Government Corporate Counsel (OGCC) shall act as
the principal law office of all government-owned or controlled corporations,
their subsidiaries. other corporate offsprings and government acquired asset
corporations and shall exercise control and supervision over all legal
departments or divisions maintained separately and such powers and functions as
are now or may hereafter be provided by law. In the exercise of such control
and supervision, the Government Corporate Counsel shall promulgate rules and
regulations to effectively implement the objectives of the Office.
x x x x
[69] See The Law Firm of Laguesma
Magsalin Consulta and Gastardo v. Commission on Audit, G.R. No. 185544,
January 13, 2015, 745 SCRA 269, 286-289.
[70] G.R. No. 155692, October 23, 1003, 414
SCRA 327, 335.
[71] Rollo (G.R. No. 209424), Vol.
III, p. 1493.
[72] Rollo (G.R. No. 209424), Vol.
II, p. 455.
[73] Rollo (G.R. No. 209424), Vol.
III, p. 1037.
[74] Id. at 1225.
[75] Oñate v. Commission on Audit, G.R.
No. 213660, July 5, 2016, 795 SCRA 661, 666-667.
[76] Republic v. St. Vincent De Paul
Colleges, Inc., G.R. No. 192908, August 22, 2012, 678 SCRA 738, 747-750.
[77] Rollo (G.R. No. 209852). Vol.
I, pp. 411-414.
[78] Id. at 420-421.
[79] Id. at 236.
[80] G.R. No. 213529, July 13, 2016, 797 SCRA
1, 16-18.
[81] Callo-Claridad v. Esteban, G.R. No.
191567, March 20, 2013, 694 SCRA 185, 197.
[82] People v. Tibayan, G.R. No.
209655-60, January 24, 2015, 746 SCRA 259, 269.
[83] Id. at 268.
[84] Catiis v. Court of Appeals, G.R.
No. 153979, February 9, 2006, 482 SCRA 71, 81.
[85] G.R. No. 192925, December 9, 2016, 813
SCRA 610, 633.
[86] Rollo (G.R. No. 209852), Vol.
I, p. 381.
[87] Id. at 402.
[88] Id. at 402.
[89] Rollo (G.R. No. 209424), Vol.
II, p. 754.
[90] Rollo (G.R. No. 209852), Vol.
I, pp. 420-421.
[91] De Castro v. Judicial and Bar Council
(JBC), G.R. Nos. 191002, 191032, 191057, 191149, 191342, 191420 and A.M.
No. 10-2-5-SC, March 17, 2010, 615 SCRA 666, 742-743.
[92] G.R. No. 187919, 187979, 188030, February
20, 2013, 691 SCRA 445, 469.
[93] G.R. No. 161651, June 8, 2011, 651 SCRA
262, 275, citing Alcantara v. Court of Appeals, G.R. No. 147259,
November 24, 2003, 416 SCRA 418, 430.
[94] Aricheta v. People, G.R. No.
172500, September 21, 2007, 533 SCRA 695, 704.
[95] Rollo (G.R. No. 209852), Vol.
I, p. 393.
[96] Id. at 411-412.
[97] Rollo (G.R. No.209424), Vol.
II, p. 599.
[98] G.R. No. 164317, February 6, 2006, 481
SCRA 609, 636-637.
[99] Rollo (G.R. No. 209852), Vol.
I, p. 417.
[100] Id. at 418.
[101] Id.
[102] Id.
[103] See Zapanta v. People, G.R.
Nos. 192698-99, April 22, 2015, 757 SCRA 172, 190-191.
[104] Rollo (G.R. No. 209852), Vol.
I, p. 419.
[105] Id. at 419-420.
[106] G.R. No. 183345, September 17, 2014, 735
SCRA 312, 329-330.
[107] Section 4. When and where to file the
petition. - The petition shall be filed not later than sixty (60) days from
notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required
or not, the petition shall be filed not later than sixty (60) days counted from
the notice of the denial of the motion. (Emphasis ours)
[108] Manila Electric Company v. N.E. Magno
Construction, Inc., G.R. No. 208181, August 31, 2016, 802 SCRA 51, 59.
[109] G.R. No. 156413, April 14, 2004, 427 SCRA
658, 668.
[110] Rollo (G.R. No. 208744), Vol.
I, p. 62.
[111] Rollo (G.R. No. 208744), Vol.
II, p. 652.
[112] G.R. No. 188376, December 14, 2011, 662
SCRA 614.
[113] Id. at 643-644.
DISSENTING OPINION
CARPIO, J.:
This case involves the resolution of this issue: Is the taking of some P6.6 billion
from the PAG-IBIG Fund, through the use of over one thousand fictitious
borrowers, applied for by a private corporation through its corporate officers,
simple estafa or
syndicated estafa?
The PAG-IBIG Fund, administered by a government corporation, is sourced from
contributions by millions of public and private employees.
The majority holds that this mind-boggling taking of funds is a case of
simple estafa.
I dissent for obviously this is a case of syndicated estafa.
Before this Court are consolidated petitions for review filed under Rule 45 of
the Rules of Court. The consolidated cases stemmed from the housing loan
accounts taken out from Home Development Mutual Fund (HDMF) by Globe Asiatique
Realty Holdings Corporation (Globe Asiatique) for its housing projects in
Pampanga.
The Facts
In 2008, Globe Asiatique, represented by its president, Delfin S. Lee,
negotiated with HDMF for a Window-1 Contract to Sell/Real Estate Mortgage
(CTS-REM) with Buyback Guaranty take out mechanism for its Xevera Bacolor
Project in Pampanga. Pursuant thereto, Globe Asiatique entered into Funding
Commitment Agreements (FCAs) and Memoranda of Agreement (MOA) with HDMF.
On 10 September 2010, then HDMF Officer-in-Charge (OIC) Emma Faria (Faria)
wrote a letter to the Director of the National Bureau of Investigation (NBI),
requesting assistance in the investigation by HDMF on the housing loan accounts
taken out by Globe Asiatique for Xevera and Sameera projects in Pampanga. In
her letter, Faria stated that HDMF's own validation of Globe Asiatique's
accounts revealed that hundreds of them have been taken out by spurious
borrowers while about a thousand more could not be located.
The NBI conducted its own investigation. On 29 October 2010, the NBI forwarded
to the Department of Justice (DOJ) a letter recommending that a preliminary
investigation be conducted against Delfin S. Lee and others for the crime of
syndicated estafa constituting
economic sabotage. The DOJ formed a panel of prosecutors to investigate the
complaint which was docketed as NPS Docket XVI-INV-lOJ-00319,
entitled National Bureau of Investigation (NBI)/Home Development Mutual
Fund (HDMF) v. Globe Asiatique Realty Holdings Corp., Delfin S. Lee, et al. (First
Criminal Complaint).
On 15 November 2010, Globe Asiatique and Delfin S. Lee filed before the Makati
RTC a complaint for Specific Performance and Damages against HDMF, its
Board of Trustees and OIC Faria (Makati Civil Case). The Complaint was
docketed as Civil Case No. 10-1120, entitled Globe Asiatique
Realty Corp., et al. v. The Home Development Mutual Fund or PAG-IBIG Fund, et
al. and raffled to Makati RTC Branch 58. The complaint sought to
compel HDMF to accept the replacements Globe Asiatique had proposed to take the
place of buyers/borrowers who have become delinquents in their payments of
their loan amortizations.
Meanwhile, on 10 December 2010, the NBI forwarded to the DOJ another letter
recommending the conduct of preliminary investigation against Delfin S. Lee and
others for syndicated estafa based
on the complaints of HDMF and Globe Asiatique clients Evelyn Niebres, Catherine
Bacani, and Ronald San Nicolas. Acting on the NBI recommendation, the DOJ
formed a panel of prosecutors to handle the preliminary investigation of the
complaint, which was docketed as NPS Docket No. XVI-INV-10L-00363,
entitled National Bureau of Investigation/Evelyn B. Niebres, et al. v.
Globe Asiatique Realty Corp./Delfin S. Lee, et al. (Second
Criminal Complaint). On 18 February 2011, the third criminal complaint for
syndicated estafa was
filed, docketed as NPS Docket No. XVI-INV-11B-00063, entitled National
Bureau of Investigation/Jennifer Gloria, et al. v. Globe Asiatique Realty
Corp./Delfin S. Lee, et al. (Third Criminal Complaint). The fourth
criminal complaint for syndicated estafa, docketed as NPS Docket No.
XVI-INV-11C-00138, entitled National Bureau of Investigation/Maria
Fatima Kayonas, et al. v. Globe Asiatique Realty Corp./Delfin S. Lee, et al. (Fourth
Criminal Complaint) was filed on 25 March 2011. Delfin S. Lee filed a petition
to suspend the proceedings, which the DOJ denied.
Without awaiting the outcome of the pending DOJ cases, Delfin S. Lee tiled
a Petition for Injunction dated 27 July 2011 before the Pasig RTC to
enjoin the DOJ from continuing with the preliminary investigation in the Second
Criminal Complaint. The case was docketed as Civil Case No.
73115-PSG and raffled to Branch 167 of the Pasig RTC, presided by
Judge Rolando Mislang (Judge Mislang). In his petition, Delfin S. Lee argued
that the Makati Civil Case poses a prejudicial question to the determination of
the Second Criminal Complaint, and thus prayed for the suspension of the
proceedings in the latter case.
In an Order dated 16 August 2011, Judge Mislang of the Pasig RTC granted Delfin
S. Lee's application for TRO, and enjoined the DOJ from continuing with the
preliminary investigation in the Second Criminal Complaint. In its Order dated
26 August 2011, the Pasig RTC likewise granted Delfin S. Lee's application for
TRO to enjoin the DOJ from filing an Information for syndicated estafa in
connection with the First Criminal Complaint. Thereafter, in its Order
dated 5 September 2011, the Pasig RTC issued a Writ of Preliminary Injunction,
restraining the DOJ from filing the Information in the First Criminal Complaint
and from proceeding with the preliminary investigation in the Second Criminal
Complaint.
In a petition docketed as CA-G.R. SP No. 121594, the DOJ assailed the Pasig
RTC's Order dated 5 September 2011. In its Decision dated 16 April 2012, the
Court of Appeals (CA) ruled that no prejudicial question exists and thus
annulled the 5 September 2011 Order of the Pasig RTC. On appeal, this Court in
its 4 July 2012 Resolution in G.R. No. 201360 affirmed the CA Decision, and
thereafter denied Delfin S. Lee's Motion for Reconsideration. The CA Decision
in CA-G.R. SP No. 121594 dated 16 April 2012 became final and executory on 2
January 2013.
In September 2011, HDMF filed before the Pasig RTC a Motion to Inhibit and
Leave to File Motion in Intervention. The DOJ also filed a Motion to Inhibit.
In its Order dated 27 January 2012, the Pasig RTC allowed HDMF to intervene but
denied the motions to inhibit.
In the meantime, the DOJ Task Force on Securities and Business Scam issued
a Review Resolution dated 10 August 2011, finding probable cause
for syndicated estafa (NPS
Docket No. XVI-INV-10J-00319) against Delfin S. Lee, Dexter L. Lee, Christina
Sagun, Cristina Salagan, and Atty. Alex Alvarez.
On the Makati Civil Case, the Makati RTC issued a Resolution dated 30
January 2012, granting Delfin S. Lee's Motion for Summary Judgment, ruling that
Globe Asiatique was entitled to specific performance and damages, except that
the exact amount of damages will have to be determined during the trial proper.
In its Resolution dated 11 December 2012, the Makati RTC denied the Motion for
Reconsideration filed by HDMF President and Chief Executive Officer Atty.
Darlene Marie Berberabe (Atty. Berberabe) and Faria, and ruled that the Summary
Judgment declared in Civil Case No. 10-1120 is already final and executory
against HDMF. HDMF filed a Petition for Certiorari before the CA, docketed
as CA-G.R. SP No. 128262. In its Decision dated 7 October 2013, the CA dismissed
HDMF's petition, finding no grave abuse of discretion and ruling that HDMF
availed of the wrong remedy to assail the Makati RTC Resolutions and that there
was no showing that the petition was filed under the authority of the Office of
the Government Corporate Counsel (OGCC).
In the meantime, Delfin S. Lee filed before the Pasig RTC a Supplemental
Petition dated 11 June 2012, seeking to enjoin the DOJ from proceeding with the
Third and Fourth Criminal Complaints, citing the 30 January 2012 Resolution of
the Makati RTC in the Makati Civil Case. On 21 March 2013, the Pasig RTC issued
a TRO against the DOJ, enjoining the latter from proceeding with the
preliminary investigation of the Second, Third, and Fourth Criminal Complaints.
Thereafter, in its Order dated 10 April 2013, the Pasig RTC issued the
Writ of Preliminary Injunction, enjoining the DOJ from continuing with the
preliminary investigation of the Second, Third, and Fourth Criminal Complaints.
On 7 June 2013, the DOJ filed a Motion for Special Extension of Time to File
Petition for Certiorari before the CA (CA-G.R. SP No. 130404). Thereafter, the
DOJ filed on 18 June 2013 the Petition for Certiorari, assailing
the Pasig RTC Order dated 10 April 2013. Unfortunately, the petition was
inadvertently filed without a docket number, resulting in the petition being
given a new docket number (CA-G.R. SP No. 130409) and raffled to another ponente and
division.
On 8 July 2013, the CA issued a Resolution in CA-G.R. SP No. 130404,
denying the DOJ's Motion for Special Extension of Time to File Petition for
Certiorari, stating that the requested period has lapsed without the petition
having been filed. DOJ filed a Manifestation with Motion to Admit Petition
for Certiorari dated 16 July 2013, which sought reconsideration of the CA's
Resolution dated 8 July 2013, and prayed for the admission of the attached
petition. In the Resolution dated 14 August 2013, the CA denied the
motion for being filed out of time.
As regards CA-G.R. SP No. 130409, the CA, in its 26 June 2013
Resolution, dismissed the Petition for Certiorari filed by the
DOJ on 18 June 2013 for being filed out of time. The CA denied the DOJ's Motion
for Reconsideration in the Resolution dated 11 November 2013.
In the meantime, on 30 April 2012, the criminal information for
syndicated estafa against
Delfin S. Lee, Dexter Lee, Atty. Alex Alvarez, Christina Sagun, and Cristina
Salagan was raffled to Pampanga RTC, Branch 42, presided by Judge Maria
Amifaith S. Fider-Reyes. The case was docketed as Criminal Case No. 18480
entitled "People of the Philippines v. Delfin S. Lee, Dexter L. Lee,
Christina Sagun, Cristina Salagan and Atty. Alex Alvarez."
On 22 May 2012, the Pampanga RTC issued a Resolution, finding probable cause
for the crime of estafa (Article
315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex
Alvarez, and issued a warrant of arrest against them with no bail recommended.
In the Resolution dated 22 August 2012, the Pampanga RTC denied the: (1)
Motion to Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release
to Law Enforcement Agencies Pending the Resolution of the Motion filed by
Delfin S. Lee and Dexter L. Lee; and (2) Motion to Quash Warrant of Arrest
filed by Cristina Salagan.
On 29 January 2014, the Pampanga RTC issued a Resolution denying Christina
Salagan's Second Motion to Quash Information with Prayer to Re-Determine
Probable Cause Based on Supervening Event.
The Cases
The Court consolidated these cases which involve common questions of law and
fact, and the reliefs sought are intertwined.
G.R. No. 205698
(Home Development Mutual Fund (HDMF) PAG-IBIG Fund, v. Christina Sagun)
This petition for review on certiorari assails the 5 October
2012 Decision and the 11 February 2013 Resolution of the CA in CA-G.R. SP No.
121346. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, the Petition
for Certiorari and Prohibition is hereby PARTIALLY GRANTED.
Consequently, the subject Review Resolution dated August 10, 2011 issued by
respondent DOJ is SET ASIDE and DISMISSED as against petitioner Christina
Sagun.
SO ORDERED.[1]
The 10 August 2011 DOJ Review Resolution found
probable cause against Delfin Lee, Dexter L. Lee, Christina Sagun, Cristina
Salagan, and Atty. Alex Alvarez for the crime of syndicated estafa in the First Criminal
Complaint and recommended the filing of the corresponding information against
them. The dispositive portion of the DOJ Review Resolution reads:
WHEREFORE, premises considered, it is most
respectfully recommended that this resolution, finding probable cause against
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex
Alvarez for the crime of syndicated estafa, as defined and penalized under
paragraph 2(a) of Article 315 of the Revised Penal Code, in relation to Section
1 of Presidential Decree No. 1689, be APPROVED and that the corresponding
information against them be filed in court WITH NO BAIL RECOMMENDED. It is
likewise respectfully recommended that the complaint against Ramon P. Palma
Gil, Lerma Vitug, Tintin Fonclara, Geraldine Fonclara, Revelyn Reyes, Rod
Macaspac, Marvin Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan, Nannet
Haguiling and John Tungol, be DISMISSED for lack or insufficiency of evidence
and that this Resolution be referred to the Office of the Ombudsman so that the
appropriate investigation be conducted against the former and present officers
of HDMF (Pag-Ibig Fund).
Petitioner HDMF's Motion
for Reconsideration was denied by the CA in its Resolution dated 11 February
2013.
G.R. No. 205780
(Department of Justice, represented by Sec. Leila De Lima, State Prosecutor
Theodore M Villanueva and Prosecutor General Claro A. Arellano, and the
National Bureau of Investigation v. Christina Sagun)
This petition for review on certiorari filed by the DOJ and
NBI likewise seeks to reverse and set aside the 5 October 2012 Decision and the
11 February 2013 Resolution of the CA in CA-G.R. SP No. 121346.
G.R. No. 208744
(Department of Justice v. Delfin S. Lee)
This petition for review on certiorari assails the CA Resolutions dated 8 July
2013[2] and 14 August 2013[3] in CA-G.R. SP No. 130404.
On 7 June 2013, the DOJ filed with the CA a Motion for Special Extension of
Time to File Petition for Certiorari, praying for an additional period of ten
days from 9 June 2013, or until 19 June 2013 to file the intended petition. On
18 June 2013, the DOJ filed the petition, assailing the 10 April 2013 Order of
the Pasig RTC (Branch 167) in Civil Case No. 73115 which granted Delfin S.
Lee's application for the issuance of a writ of preliminary injunction. The
assailed Order enjoined the DOJ from continuing with the preliminary
investigation of the Second, Third and Fourth Criminal Complaints, thus:
WHEREFORE, let a writ of preliminary injunction
issue enjoining Department of Justice and any other person or panel under its
supervision from continuing with the preliminary investigation of NPS Docket
No. XVI-INV-10L-00363, the Second Criminal Complaint, NPS Docket No.
XVI-INV-11B-00063, the Third Criminal Complaint, and NPS Docket No.
XVI-INV-11C-00138, the Fourth Criminal Complaint.
Petitioner is directed to post a bond in the amount of Php2,000,000.00.[4]
Unfortunately, the
petition filed on 18 June 2013 was without a docket number, which resulted in
the petition being given another docket number, namely CA-G.R. SP No. 130409
(instead of CA-G.R. SP No. 130404), and the same was raffled to another ponente and
division.
On 8 July 2013, the CA issued a Resolution in CA-G.R. SP No. 130404, denying
the DOJ's Motion for Extension of Time to File Petition for Certiorari, stating
that the requested period has lapsed without the petition having been filed.
The DOJ filed a Manifestation with Motion to Admit Petition for Certiorari
dated 16 July 2013, which sought reconsideration of the CA's Resolution dated 8
July 2013, and prayed for the admission of the attached petition. In the
Resolution dated 14 August 2013, the CA denied the motion for being filed out
of time. The CA did not consider the petition as filed on 18 June 2013 since
the inexcusable inadvertence of the DOJ in filing the petition without a docket
number resulted in the petition being considered as a freshly filed petition
and given the latest docket number, namely, CA-G.R. SP No. 130409. Furthermore,
the CA found no compelling reason to reconsider the 8 July 2013 Resolution
denying the DOJ's Motion for Extension.
G.R. No. 209424
(Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings
Corporation, Delfin S. Lee, in his capacity as the President of the Corporation,
and Tessie G. Wang)
This petition for review on certiorari assails the CA Decision
dated 7 October 2013 in CA-G.R. SP No. 128262,[5] which upheld the Resolutions dated 30 January 2012 and 11
December 2012 of the Makati RTC in Civil Case No. 10-1120.[6] The dispositive portion of the CA Decision reads:
WHEREFORE, there being no grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of public
respondent in rendering the assailed Resolution dated January 30, 2012 containing
the Summary Judgment and the Resolution dated December 11, 2012 denying the
HDMF, Faria and Atty. Berberabe's Motion for Reconsideration, the instant
petition is hereby DISMISSED.
SO ORDERED.[7]
The Makati RTC
Resolution dated 30 January 2012 granted the Motion for Summary Judgment filed
by Globe Asiatique and Delfin S. Lee.
HDMF and Faria filed a Motion for Reconsideration through private counsel, the
Yorac Arroyo Chua Caedo & Coronel Law Firm. However, the Makati RTC held
that the Motion for Reconsideration filed by the private counsel in behalf of
HDMF is unauthorized. Atty. Berberabe likewise filed a Motion for
Reconsideration. In a Resolution dated 11 December 2012, the Makati RTC denied
the motions for reconsiderations filed by Faria and Atty. Berberabe for lack of
merit. The Makati RTC further held that the 30 January 2012 Resolution
containing the Summary Judgment has become final, executory, and immutable as
to HDMF.
G.R. No. 209446
(People of the Philippines v. Alex M. Alvarez)
This petition for review on certiorari assails the CA Decision
dated 3 October 2013 in CA-G.R. SP No. 127690, the dispositive portion of which
reads:
WHEREFORE, in view of the foregoing premises,
the Petition for Certiorari and the Supplemental Petition are PARTIALLY GRANTED
and the assailed Resolutions dated May 22, 2012 and August 22, 2012 of the
Regional Trial Court, Branch 42 of San Fernando City, Pampanga in so far as
petitioner ALEX M. ALVAREZ is concerned are hereby annulled and set aside.
Accordingly, the warrant of arrest issued against him is hereby LIFTED,
QUASHED/RECALLED.
Meantime, since the evidence do not support the finding of probable cause
against petitioner ALEX M. ALVAREZ, public respondent court is hereby enjoined
from proceeding with Criminal Case No. 18480 as against said petitioner only.
SO ORDERED.[8]
The 22 May 2012
Resolution of the Pampanga RTC found probable cause for the crime of estafa (Article
315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex
Alvarez, and issued a warrant of arrest against them with no bail recommended.
In the Resolution dated 22 August 2012, the Pampanga RTC denied the: (1) Motion
to Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release to Law
Enforcement Agencies Pending the Resolution of the Motion filed by Delfin S.
Lee and Dexter L. Lee; and (2) Motion to Quash Warrant of Arrest filed by
Cristina Salagan.
G.R. No. 209489
(Home Development Mutual Fund v. Atty. Alex M. Alvarez)
This petition for review on certiorari filed by HDMF likewise
assails the CA Decision dated 3 October 2013 in CA-G.R. SP No. 127690.
G.R. No. 209852
(Home Development Mutual Fund (HDMF) v. Delfin S. Lee)
This petition for review on certiorari assails the CA Decision
dated 7 November 2013 in CA-G.R. SP No. 127553,[9] which partially granted respondent Delfin S. Lee's Petition
for Certiorari assailing the Resolutions dated 22 May 2012 and 22 August 2012
of the Pampanga RTC (Branch 42) in Criminal Case No. 18480.[10] The dispositive portion of the CA Decision reads:
WHEREFORE, in view of the foregoing, the instant
petition is hereby PARTIALLY GRANTED. The assailed Resolutions dated May 22,
2012 and August 22, 2012 are hereby ANNULLED and SET ASIDE for the issuance
thereof was attended with grave abuse of discretion on the part of public
respondent Hon. Ma. Amifaith S. Fider-Reyes, in her capacity as the Presiding
Judge of the San Fernando, Pampanga RTC - Branch 42. Consequently, the Warrant
of Arrest issued against petitioner Delfin S. Lee is hereby QUASHED, RECALLED
AND LIFTED. Afore named public respondent judge is directed to CEASE and
DESIST from further proceeding with Criminal Case No. 18480 insofar as petitioner
Delfin S. Lee is concerned.
Furthermore, all government agencies tasked in the enforcement of the said
warrant of arrest including but not limited to the Philippine National Police
(PNP), the National Bureau of Investigation (NBI) and the Bureau of Immigration
(BI) are immediately ENJOINED from implementing the same.
SO ORDERED.[11]
G.R. No. 210095
(Department of Justice v. Delfin S. Lee)
This petition for review on certiorari assails the CA
Resolutions dated 26 June 2013 and 11 November 2013 in CA-G.R. SP No. 130409.
The 26 June 2013 Resolution dismissed the Petition for Certiorari filed
by the DOJ on 18 June 2013 for being filed out of time. The CA denied the DOJ's
Motion for Reconsideration in the Resolution dated 11 November 2013.
The Petition for Certiorari was filed by the DOJ before the CA
to nullify the Order dated 10 April 2013 of Judge Mislang of the Pasig RTC
(Branch 167) in Civil Case No. 73115, enjoining the DOJ from continuing with
the preliminary investigation of the second, third, and fourth criminal
complaints against Delfin S. Lee.
G.R. No. 210143
(People of the Philippines v. Delfin S. Lee)
This petition for review on certiorari assails the CA Decision
dated 7 November 20I3 in CA-G.R. SP No. 127553,[12] which partially granted respondent Delfin S. Lee's Petition
for Certiorari, assailing the Resolutions dated 22 May 2012 and 22
August 2012 of the Pampanga RTC (Branch 42) in Criminal Case No. I8480. This
case is related to the case entitled Home Development Mutual Fund
(HDMF) v. Delfin S. Lee (G.R. No. 209852) which likewise seeks to
reverse and set aside the CA Decision dated 7 November 2013 in CA-G.R. SP No.
127553.
G.R. No. 228452
(Home Development Mutual Fund (HDMF) v. Dexter L. Lee)
This petition for review on certiorari assails the CA Decision dated 16
November 2016 in CA-G.R. SP No. 127554,[13] partially granting
respondent Dexter L. Lee's Petition for Certiorari assailing the Resolutions
dated 22 May 2012 and 22 August 2012 of the Pampanga RTC (Branch 42) in
Criminal Case No. 18480.[14] The dispositive portion of the CA Decision
reads:
ACCORDINGLY, on the foregoing reasons, the
petition is PARTIALLY GRANTED. The assailed Resolutions dated May 22, 2012 and
August 22, 2012 of Branch 42 of Regional Trial Court of Pampanga City are
ANNULLED and SET ASIDE. Thus, the Warrant of Arrest issued against petitioner
Dexter L. Lee is hereby QUASHED, RECALLED and LIFTED. Furthermore, the Regional
Trial Court, Branch 42 of San Fernando Pampanga is directed to CEASE and DESIST
from further proceeding with Criminal Case No. 18480 insofar as petitioner
Dexter L. Lee is concerned.
Moreover, all government agencies tasked in the enforcement of the Warrant of
Arrest including but not limited to the Philippine National Police, the
National Bureau of Investigation and the Bureau of Immigration are immediately
ENJOINED from implementing the said Warrant.
SO ORDERED.[15]
G.R. No. 228730
(People of the Philippines v. Dexter L. Lee)
This petition for review on certiorari likewise assails the CA
Decision dated 16 November 2016 in CA-G.R. SP No. 127554, partially granting
respondent Dexter L. Lee's Petition for Certiorari assailing
the Resolutions dated 22 May 2012 and 22 August 2012 of the Pampanga RTC
(Branch 42) in Criminal Case No. 18480. This case is related to the immediately
preceding case entitled Home Development Mutual Fund (HDMF) v. Dexter
L. Lee (G.R. No. 228452) which also seeks to reverse and set aside the
CA Decision dated 16 November 2016 in CA-G.R. SP No. 127554.
G.R. No. 230680
(Cristina Salagan v. People of the Philippines and Home Development Mutual
Fund ([HDMF])
This petition for review on certiorari assails the CA Decision
dated 18 March 2016 in CA-G.R. SP No. 134573, affirming the Resolutions dated
22 May 2012 and 29 January 2014 of the Pampanga RTC (Branch 42) in Criminal
Case No. 18480 insofar as accused Salagan is concerned. The dispositive portion
of the CA Decision reads:
WHEREFORE, in view of the foregoing, the
Petition for Certiorari is DISMISSED. Accordingly, the Resolution dated May 22,
2012 and Resolution dated January 29, 2014 of the San Fernando, Pampanga RTC,
Branch 42 are hereby AFFIRMED insofar as Accused Cristina Salagan is concerned.
SO ORDERED.[16]
For clarity, the cases are discussed jointly in
accordance with the resolutions or orders being ultimately assailed, thus:
I. DOJ Review Resolution dated 10 August 2011
1.
G.R.
No. 205698 - Home
Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2.
G.R.
No. 205780 - Department
of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M.
Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of
Investigation v. Christina Sagun
II. Pampanga RTC Resolutions dated 22 May 2012,
22 August 2012, and 29 January 2014
1.
G.R.
No. 209446 - People
of the Philippines v. Alex M. Alvarez
2.
G.R.
No. 209489 - Home
Development Mutual Fund v. Atty. Alex M. Alvarez
3.
G.R.
No. 209852 - Home
Development Mutual Fund (HDMF) v. Delfin S. Lee
4.
G.R.
No. 210143 - People
of the Philippines v. Delfin S. Lee
5.
G.R.
No. 228452 - Home
Development Mutual Fund (HDMF) v. Dexter L. Lee
6.
G.R.
No. 228730 - People
of the Philippines v. Dexter L. Lee
7.
G.R.
No. 230680 - Cristina
Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
III. Pasig RTC Order dated 10 April 2013
1.
G.R.
No. 208744 - Department
of Justice v. Delfin S. Lee
2.
G.R.
No. 210095 - Department
of Justice v. Delfin S. Lee
IV. Makati RTC Resolutions dated 30 January 2012
and 11 December 2012
1.
G.R.
No. 209424 - Home
Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation,
Delfin S. Lee, in his capacity as the President of the corporation, and Tessie
G. Wang
The Issues
I.
Whether the CA erred in
setting aside the DOJ Review Resolution dated 10 August 2011 as against
Christina Sagun; (G.R. Nos. 205698 and 205780)
II.
A. Whether the CA erred
in finding no probable cause for syndicated estafa and for the issuance of arrest
warrants against Delfin S. Lee, Dexter L. Lee, and Atty. Alex M. Alvarez; (G.R.
Nos. 209446, 209489, 209852, 210143, 228452, and 228730)
B. Whether the CA (CA-G.R. SP No. 134573) erred in upholding the validity of
the information for syndicated estafa as against Cristina Salagan and the issuance of the
warrant of arrest against her. (G.R. No. 230680)
III.
A. Whether the CA erred
in dismissing the Petition for Certiorari, assailing the Pasig RTC
Order in Civil Case No. 73115, for being filed out of time; and
B. Whether the Pasig RTC erred in enjoining the DOJ from continuing with the
preliminary investigation of the second, third and fourth criminal complaints;
(G.R. Nos. 208744 and 210095)
IV.
A. Whether the CA erred
in dismissing the Petition for Certiorari for being the wrong
remedy to assail the Summary Judgment; and
B. Whether the Makati RTC erred in issuing the Summary Judgment in Civil Case
No. 10-1120. (G.R. No. 209424)
I.
1.
G.R.
No. 205698 - Home
Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2.
G.R.
No. 205780 - Department
of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M
Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of
Investigation v. Christina Sagun
G.R. Nos. 205698 and 205780 both question the
propriety of the CA's ruling on Sagun's petition. The petition before the CA
questioned the Review Resolution, and not the issuance of the Information and
the trial court's subsequent finding of probable cause. The issues before this
Court in these two cases may be limited to the following: (1) whether Christina
Sagun followed proper procedure, and (2) whether the CA was correct in
proceeding to rule on the validity of the Information and of the issuance of
the warrants of arrest.
I rule for petitioners HDMF and DOJ on both issues. The ponencia did
not address the first issue. There was no mention of Sagun's direct resort to
the CA after the release of the Review Resolution. The ponencia immediately
ruled on the second issue and concluded that there was no probable cause for
the filing of the Information for syndicated estafa and for the issuance of warrants
of arrest against respondents Delfin S. Lee, Dexter Lee, Christina Sagun, Atty.
Alex Alvarez, and Cristina Salagan.
Christina Sagun failed to exhaust administrative remedies
Aggrieved parties may appeal from resolutions of prosecutors by filing a
verified petition for review before the Secretary of Justice. The pertinent
portions of the rule governing appeals from resolutions of prosecutors in the
National Prosecution Service, otherwise known as the 2000 NPS Rule on Appeal,[17] provide:
SECTION 1. Scope. - This Rule shall
apply to appeals from resolutions of the Chief State Prosecutor, Regional State
Prosecutors and Provincial/City Prosecutors in cases subject of preliminary
investigation/ reinvestigation.
SECTION 2. Where to appeal. An appeal may be brought to the
Secretary of Justice within the period and in the manner herein provided.
SECTION 3. Period to appeal. The appeal shall be taken within
fifteen (15) days from receipt of the resolution, or of the denial of the
motion for reconsideration/reinvestigation if one has been filed within fifteen
(15) days from receipt of the assailed resolution. Only one motion for
reconsideration shall be allowed.
SECTION 4. How appeal taken. An aggrieved party may appeal by
filing a verified petition for review with the Office of the Secretary,
Department of Justice, and by furnishing copies thereof to the adverse party
and the Prosecution Office issuing the appealed resolution.
The exception to the general rule will apply
only when there is a clear showing of grave abuse of discretion by the public
prosecutor amounting to lack or excess of jurisdiction. Absent such showing,
the courts do not have the power to substitute their judgment for that of the
Secretary of Justice.
In the DOJ's Review Resolution, Christina Sagun's defense is summarized as
follows:
Respondent Christina Sagun, for her
part, admits that she is the former head of the Documentation Department of GA
since 2007. She asserts that the evidence against her in the above-entitled
complaint is insufficient inasmuch as the complaint failed to specifically
indicate her participation in the alleged crime. She stresses that the
enumeration of her specific participation is an essential requirement of due
process and is necessary for her to effectively prepare her defense and respond
to the charges made against her. She believes that her inclusion in the instant
case was in relation to the alleged second buyers of a property who availed of
the loan privileges under the Window-1 - CTS-REM with buyback guaranty takeout
mechanism granted by the HDMF to GA, namely: Girlie Santos Espanillo, Lerma
Cariaga Villaflores, Emily Pagdato Bandillo, Jennifer Fernando and Marissa
Quizon.
She also emphasizes that the function of the Documentation Department in
relation to Window- 1 - CTS-REM with buyback guaranty takeout mechanism of HDMF
is ministerial in nature such as receiving, collating and checking loan
documents if they are complete or not and verifying from Pag-IBIG if
buyers/borrowers of GA are Pag-IBIG members with updated contribution and if
they are qualified for a housing loan. In short, her office does not exercise discretion
but merely perfunctory and strictly ministerial power. She maintains that she
had not participated in any transactions with private complainants Evelyn
Niebres, Catherine Bacani and Ronald San Nicolas. Neither had she made any
false statement nor representation to the HDMF.[18]
The DOJ Review Resolution also stated that
Christina Sagun prepared the developer's affidavits that Atty. Alex Alvarez
notarized.[19]
The same DOJ Review Resolution set aside Christina Sagun's defense as follows:
By the same token, we hereby thrust aside the
defenses raised by Christina Sagun x x x since, as shown by
the Records, they are in the nature of denial which is "an intrinsically
weak defense and which must be buttressed with strong evidence of non-culpability
to merit credibility." Besides, it was clearly established by the evidence
that Christina Sagun, being the head of the Documentation Department, is
responsible for (a) collating and checking if the documents submitted by the
borrowers/buyers, through GA's Marketing Department, are complete and duly
accomplished, and (b) determine and verify from Pag-IBIG, through the
submission of Membership Status Verification, whether or not said
borrowers/buyers are indeed Pag-IBIG members, or with updated contributions, or
[have] no existing housing loans, and thus are qualified to apply for housing
loans. x x x. Verily, by the nature of their functions, Christina Sagun x
x x could have prevented the commission of the herein fraud if only they
exercised their functions diligently and in a prudent manner. But they failed
and in fact they participated in the fraudulent scheme. x x x.
In the words of the Court, the rationale for making such officers responsible
for the offense is that, they are vested with the authority and responsibility
to devise means necessary to ensure compliance with the law and, if they fail
to do so, are held criminally accountable; thus, they have a responsible share
in the violations of the law. And this principle applies "[W]hether [sic]
or not the crime requires the consciousness of wrongdoing. It applies to those
corporate agents who themselves commit the crime and to those, who, by virtue
of their managerial positions or other similar relation to the corporation,
could be deemed responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to prevent the act.
Moreover, all parties active in promoting a crime, whether agents or not, are
principals. Whether such officers or employees are benefited by their delictual
acts is not a touchstone of their criminal liability. Benefit is not an
operative act."
x x x x
Record also shows that during the Board Meeting held on June 20, 2008 wherein
the piloting of the OWG membership program in GA's Xevera Project was
discussed, then CEO Atty. Romero Quimbo admitted the difficulty of monitoring
the sources of income of this group because many of them do not declare their
actual earnings such that a credit investigation will be conducted to verify
the authenticity of their income. However, during the actual implementation of
the program, the conduct of such credit investigation was delegated to GA. In
fact, the Agreements subsequently entered into between HDMF and GA have
practically given the latter blanket authority in determining membership and
housing loan eligibility and capacity to pay of its buyers. It was also given
the authority to evaluate, pre-process and approve housing loan applications.
The only control mechanism put in place by HDMF being the post take-out audit
or validation within thirty (30) days after loan take-out. However, the Special
Audit Report dated July 26, 2010 (Annex "Q" of the Complaint) clearly
established that there was non-validation or delayed post take-out on the part
of HDMF San Fernando, Pampanga Branch, thus, exposing the Fund to probable loss
of some financial investments.[20]
The prerequisite for Sagun's resort to the CA is
a clear showing of grave abuse of discretion by the public prosecutors. Under
the present circumstances, however, Sagun failed to show that the investigating
prosecutors abused their discretion, much less gravely abused their discretion.
Sagun, in contrast to her co-respondents in I.S. No. XVIINV-10J-00319,
immediately resorted to judicial review before the CA. Delfin S. Lee, Dexter
Lee, Cristina Salagan, and Atty. Alex Alvarez all filed appeals before the
Secretary of Justice. Unlike Sagun, and despite her protestations about the
utterances pre-judging the case made by the Secretary of Justice, that "time
was of the essence," and that there was "no plain, speedy and
adequate remedy in the ordinary course of law," her co-respondents saw
that it was procedurally proper to have the Secretary of Justice re-examine the
Review Resolution.
Sagun employed the wrong remedy in assailing the investigating prosecutor's
Review Resolution, and Sagun never filed an appeal before the Secretary of
Justice. Sagun was never able to validly question the Review Resolution. Thus,
both the findings and conclusion in the Review Resolution, as well as the
consequent filing of the Information against stand. The CA erred in considering
Sagun's petition and ruling in her favor. Sagun's immediate filing of a
petition before the CA is a procedural shortcut that merits a dismissal.
The CA erred in proceeding to rule on the validity of the Information and
of the issuance of the warrant of arrest
The CA wrongfully asserted that when it reviews the DOJ's determination of
probable cause, it makes a judicial determination of probable cause which binds
the trial court.
Petitioners have done right in relying on Alcaraz v. Gonzalez:[21]
It bears stressing that in the determination of
probable cause during the preliminary investigation, the executive branch of
government has full discretionary authority. Thus, the decision whether or not
to dismiss the criminal complaint against the private respondent is necessarily
dependent on the sound discretion of the Investigating Prosecutor and
ultimately, that of the Secretary of Justice. Courts are not empowered
to substitute their own judgment for that of the executive branch.
The resolution of the Investigating Prosecutor is subject to appeal to the
Justice Secretary who, under the Revised Administrative Code, exercises the
power of control and supervision over said Investigating Prosecutor; and who
may affirm, nullify, reverse, or modify the ruling of such prosecutor. Thus,
while the CA may review the resolution of the Justice Secretary, it may do so
only in a petition for certiorari under Rule 65 of the Rules
of Court, solely on the ground that the Secretary of Justice committed grave
abuse of his discretion amounting to excess or lack of jurisdiction.
It bears stressing that the Resolution of the Justice Secretary affirming,
modifying or reversing the resolution of the Investigating Prosecutor is final.
Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution
Service Rules on Appeals), resolutions in preliminary investigations or
reinvestigations from the Justice Secretary's resolution, except the aggrieved
party, has no more remedy of appeal to file a motion for reconsideration of the
said resolution of such motion if it is denied by the said Secretary. The
remedy of the aggrieved party is to file a petition for certiorari under
Rule 65 of the Rules of Court since there is no more appeal or other remedy
available in the ordinary course of law.
Reyes v. Pearlbank Securities, Inc.[22] defines probable cause in the following manner, and further
explains why the courts generally do not review the findings made by the
Secretary of Justice:
Probable cause, for the purpose of filing a
criminal information, has been defined as such facts as are sufficient to
engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean "actual and
positive cause" nor does it import absolute certainty. It is merely based
on opinion and reasonable belief. Probable cause does not require an inquiry
into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the
offense charged.
A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed by the suspects. It need not be
based on clear and convincing evidence of guilt, not on evidence establishing
guilt beyond reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common sense.
What is determined is whether there is sufficient ground to engender a
well-founded belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not require an
inquiry as to whether there is sufficient evidence to secure a conviction.
These findings of probable cause fall within the jurisdiction of the prosecutor
or fiscal in the exercise of executive power, which the courts do not interfere
with unless there is grave abuse of discretion. The determination of its
existence lies within the discretion of the prosecuting officers after conducting
a preliminary investigation upon complaint of an offended party. Thus, the
decision whether to dismiss a complaint or not is dependent upon the sound
discretion of the prosecuting fiscal. He may dismiss the complaint forthwith,
if he finds the charge insufficient in form or substance or without any ground.
Or he may proceed with the investigation if the complaint in his view is
sufficient and in proper form. To emphasize, the determination of probable
cause for the filing of information in court is an executive function, one that
properly pertains at the first instance to the public prosecutor and,
ultimately, to the Secretary of Justice, who may direct the filing of the
corresponding information or move for the dismissal of the case. Ultimately,
whether or not a complaint will be dismissed is dependent on the sound
discretion of the Secretary of Justice. And unless made with grave abuse of
discretion, findings of the Secretary of Justice are not subject to review.
For this reason, the Court considers it sound judicial policy to refrain from
interfering in the conduct of preliminary investigations and to leave the
Department of Justice ample latitude of discretion in the determination of what
constitutes sufficient evidence to establish probable cause for the prosecution
of supposed offenders. Consistent with this policy, courts do not reverse the
Secretary of Justice's findings and conclusions on the matter of probable cause
except in clear cases of grave abuse of discretion.
The reasons put forward
by the CA to justify its substitution of the Pampanga RTC's determination of
probable cause do not amount to grave abuse of discretion. The Pampanga RTC's
determination of probable cause, although in accord with the findings of the
DOJ, did not necessarily rely on the DOJ's resolution alone. Hence, in the
absence of grave abuse of discretion, there is no reason to disturb the
Pampanga RTC's determination of probable cause.
II.
1.
G.R.
No. 209446 - People
of the Philippines v. Alex M. Alvarez
2.
G.R.
No. 209489 - Home
Development Mutual Fund v. Atty. Alex M. Alvarez
3.
G.R.
No. 209852 - Home
Development Mutual Fund (HDMF) v. Delfin S. Lee
4.
G.R.
No. 210143 - People
of the Philippines v. Delfin S. Lee
5.
G.R.
No. 228452 - Home
Development Mutual Fund (HDMF) v. Dexter L. Lee
6.
G.R.
No. 228730 - People
of the Philippines v. Dexter L. Lee
7.
G.R.
No. 230680 - Cristina
Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
Delfin S. Lee and Dexter Lee failed to follow
proper procedure
Delfin S. Lee and Dexter Lee's contumacious attitude to our rules of procedure
is demonstrated by the following:
(1) failing to file a motion for reconsideration
of the 22 May 2012 resolution of the San Fernando RTC prior to filing a
petition for certiorari before the CA;
(2) filing a petition for certiorari before the CA without
waiting for the decision of the San Fernando RTC on his motions for
reconsideration of the 22 August 2012 resolution;
(3) failing to file within the reglementary period a petition for certiorari to
assail the 22 May 2012 resolution of the San Fernando RTC; and
(4) repeated instances of forum-shopping.
On 22 May 2012, the San Fernando RTC issued a
Resolution which found probable cause to issue warrants of arrest against
Delfin S. Lee and Dexter Lee, among others. On 23 May 2012, Delfin S. Lee and
Dexter Lee filed a "Motion to Recall/Quash Warrant of Arrest and/or Hold
in Abeyance their Release to Law Enforcement Agencies Pending Resolution of
this Motion." This Motion to Quash raised the following grounds: lack of
jurisdiction of the San Fernando RTC due to non-payment of filing fees;
judicial interference of the San Fernando RTC with the civil case filed before
the Makati RTC; and lack of probable cause for the crime of syndicated estafa.
Delfin S. Lee and Dexter Lee filed another Motion to Quash dated 3 June 2012.
This second Motion to Quash raised the following grounds: the facts charged in
the Information do not constitute an offense; there is no syndicated estafa because the
facts stated in the Information do not state conspiracy; and judicial
interference of the San Fernando RTC with the civil case filed before the
Makati RTC.
The San Fernando RTC denied Delfin S. Lee and Dexter Lee's Motion in a
Resolution dated 22 August 2012. Delfin S. Lee and Dexter Lee filed two Motions
for Reconsideration of the 22 August 2012 Resolution: the first on 8 October
2012, and the second on 13 October 2012. Delfin S. Lee and Dexter Lee then
separately filed a special civil action for certiorari before
the CA (CA-G.R. SP No. 127553 for Delfin S. Lee and CA-G.R. SP No. 127554 for
Dexter Lee) without waiting for any resolution from the San Fernando RTC. The
CA, in its 7 November 2013 Decision in CA-G.R. SP No. 127553, even stated this
deviation from procedure:
On 26 November 2012, without waiting for the
resolution of the above-mentioned Motion, petitioner Lee filed a Petition for
Certiorari (With Prayer for the Issuance of a TRO and/or Writ of Preliminary
Injunction) before this Court directed against the Resolutions dated May 22,
2012 and August 22, 2012 issued by public respondent x x x.
As for Dexter Lee, the CA stated in its 16
November 2016 Decision:
Pending the resolution of the motion before the
RTC of Pampanga, petitioner filed a Petition for Certiorari with prayer of a
TRO and/or Writ of Preliminary Injunction before this Court assailing the May
22, 2012 and August 22, 2012 Resolutions of RTC Pampanga.
It is hornbook doctrine that a motion for
reconsideration must first be filed with the lower court before resorting to
the extraordinary writ of certiorari. A motion for reconsideration
gives the lower court an opportunity to correct the errors imputed to it.
Moreover, the special civil action for certiorari will not lie
unless the aggrieved party has no other plain, speedy and adequate remedy in
the course of law. In the present case, Delfin S. Lee arrogated to himself the
determination of whether the filing of a motion for reconsideration is
necessary. However, Delfin S. Lee failed to show any compelling reason for his
non-filing of a motion for reconsideration and his immediate recourse to a
special civil action for certiorari before the CA.
Assuming arguendo that a petition for certiorari was
an available remedy to Delfin S. Lee, he was unable to file the petition within
the reglementary period. Delfin S. Lee received the 22 May 2012 Resolution on
23 May 2012. Pursuant to Section 4 of Rule 65, he had 60 days, or until 22 July
2012, to file a petition. Delfin S. Lee, however, filed his petition before the
CA only on 26 November 2012, or 127 days after the lapse of the 60-day
deadline. No reason was given for the inordinate delay.
In similar manner, Dexter Lee received the 22 May 2012 Resolution on 23 May
2012. Pursuant to Section 4 of Rule 65, he had 60 days, or until 22 July 2012,
to file a petition. Dexter Lee, however, filed his petition before the CA only
on 23 November 2012, or 124 days after the lapse of the 60-day deadline. Dexter
Lee also gave no reason for the inordinate delay.
With their immediate, yet separate, resort to a special civil action for certiorari,
Delfin S. Lee and Dexter Lee have asked, successively and simultaneously, for
judicial relief in different courts, particularly the San Fernando RTC and the
CA, with the same end in mind: the dismissal of the syndicated estafa case
filed against them.
Atty. Alex Alvarez engaged in forum-shopping
Among all respondents, it is Atty. Alex Alvarez who was most brazen in flouting
our rules against forum-shopping. Consider the following:
1. Atty. Alvarez filed a Petition for Review
before the Secretary of Justice on 3 October 2011 to assail the DOJ's Review
Resolution dated 10 August 2011.
2. While the Petition for Review before the Secretary of Justice was pending,
Atty. Alvarez filed a Petition (With Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction) before the Manila RTC.
3. Atty. Alvarez withdrew the Petition for Review before the Secretary of
Justice only on 14 November 2011. The Secretary of Justice has yet to rule upon
his withdrawal.
4. On 15 November 2011, Atty. Alvarez filed a petition before the CA docketed
as CA-G.R. SP No. 122076. He prayed that the DOJ cease and desist from filing
the Information in NPS Docket No. XVI-INV-10J-00319 and that he be excluded
from the Information that may be filed in the case.
5. On 23 April 2012, Atty. Alvarez filed a Notice of Withdrawal of Petition in
CA-G.R. SP No. 122076.
6. Still on 23 April 2012, Atty. Alvarez filed a Petition for Injunction and
Prohibition (With Application for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction) before the Caloocan City RTC.
7. Atty. Alvarez filed an undated second petition before the CA, docketed as
CA-G.R. SP No. 127690. He prayed that the Pampanga RTC cease from conducting
further proceedings and that the warrant of arrest issued against him be lifted
and suspended.
Throughout his numerous filings, Atty. Alvarez
has sought only one end: the dismissal of the criminal case filed against him.
Atty. Alvarez likewise submitted inaccurate certifications on non-forum
shopping in CA-G.R. SP No. 122076, CA-G.R. SP No. 127690, and before the
Caloocan City RTC.
Forum-shopping is an act of a party against whom an adverse judgment or order
has been rendered in one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action
for certiorari. It may also be the institution of two or more
actions or proceedings grounded on the same cause on the supposition that one
or the other court would make a favorable disposition. For it to exist, there
should be (a) identity of parties, or at least such parties as would represent
the same interest in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) identity of the
two preceding particulars such that any judgment rendered in the other action
will, regardless of which party is successful, amount to res judicata in the
action under consideration.[23] The acts of Delfin
S. Lee, Dexter Lee, and Atty. Alex Alvarez that were enumerated in the
preceding paragraphs satisfy all these conditions.
The CA exceeded its certiorari jurisdiction
The CA quashed, recalled, and lifted the warrants of arrest against Delfin S.
Lee, Dexter Lee, and Atty. Alex Alvarez. In doing so, the CA reviewed and
weighed the evidence submitted before the trial court and tried the facts
presented before it. It would do well for the CA to recall that its certiorari jurisdiction
is limited to errors of jurisdiction and not errors of judgment. As we stated
in Leviste v. Alameda:[24]
In a petition for certiorari, like
that filed by petitioner before the appellate court, the jurisdiction of the
court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment. The court's duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction
or with grave abuse of discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.
It is premature for the CA to rule on the merits
of the case prior to the trial on the merits.
Atty. Alex Alvarez's indispensable participation in the crime of
syndicated estafa
To emphasize the extent of Atty. Alvarez's participation m this scheme, we
quote from the transcript of the clarificatory questioning of Veniza Santos
Panem, an employee of Globe Asiatique:
|
Prosecutor Lao |
x x x Kilala mo ba si Atty. Alvarez? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Sino si Atty. Alvarez? |
|
Veniza Santos Panem |
Siya po ang nagnonotaryo ng mga dokumento sa Globe
Asiatique. |
|
Prosecutor Lao |
San sya nag-o-opisina? |
|
Veniza Santos Panem |
Sa Globe Asiatique po. |
|
Prosecutor Lao |
Head office ba? |
|
Veniza Santos Panem |
Head office po. |
|
Prosecutor Lao |
So siya yung notary public. |
|
Regular employee? Lagi mo ba syang nakikita don? Ano sa
pagkakaalam mo? |
|
|
Veniza Santos Panem |
Lagi ko po syang nakikita doon. |
|
Prosecutor Lao |
So regular employee siya ng Globe Asiatique? |
|
Veniza Santos Panem |
Hindi ko po sure pero lagi ko siyang nakikita. |
|
Prosecutor Lao |
Doon mo siya nakikita sa Globe Asiatique. |
|
Doon sya nag-o-opisina? |
|
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Anong year? |
|
Veniza Santos Panem |
Hindi ko po sigurado yung year. |
|
Prosecutor Lao |
Sa loob ng employment mo sa Globe Asiatique, sinong nauna
sa inyo doon bilang empleyado ng Globe Asiatique? |
|
Veniza Santos Panem |
Ako po. |
|
Prosecutor Lao |
Ikaw. So gaano katagal? Mga one year after? Two years
after or bago pumasok si Atty. Alvarez? |
|
Veniza Santos Panem |
Hindi ko po sure kung 2007 or 2008 po siya. |
|
Prosecutor Lao |
Sabi mo siya yung notaryo? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Saan siya nag-o-office? |
|
Veniza Santos Panem |
Sa amin po. |
|
Prosecutor Lao |
Doon sa inyo? May opisina siya doon? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
May sarili siyang kwarto doon? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Lagi mo siyang makikita doon? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
8:00 to 5:00? Whole day? |
|
Veniza Santos Panem |
Hindi naman po whole day. |
|
Prosecutor Lao |
Mga anong oras? Example Monday to Friday ... lagi ba
siyang nandoon? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
So hindi siya pala-absent? |
|
Veniza Santos Panem |
Minsan naman po wala naman po siya. |
|
Prosecutor Lao |
Pero minsan lang, absent siya minsan, kasi nagnonotaryo
siya ng mga documents. |
|
Veniza Santos Panem |
Meron po siyang secretary na nagno-notaryo. |
|
Prosecutor Lao |
Secretary niya nagno-notaryo? |
|
Veniza Santos Panem |
Opo. |
|
Prosecutor Lao |
Sino yung secretary nya? |
|
Veniza Santos Panem |
Si Imelda Saulo po. |
|
Prosecutor Lao |
Kapag wala si Atty. Alvarez, si Imelda ang nagno-notaryo? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Attorney ba si Imelda? |
|
Veniza Santos Panem |
Hindi po. |
|
Prosecutor Lao |
Ano siya? |
|
Veniza Santos Panem |
Hindi ko po alam e. |
|
Prosecutor Lao |
Ano ang tawag sa opisina nila? |
|
Veniza Santos Panem |
Legal department po. |
|
Prosecutor Lao |
Sila sa Legal department sila ni Atty. Alvarez at Imelda
Saulo. |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Yung Legal department malapit sa office nyo? |
|
Veniza Santos Panem |
Magkatapat po yung room. |
|
Prosecutor Lao |
So kapag pumapasok si Atty. Alvarez, makikita mo? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Araw-araw ba doon? Madalas mo ba siya [makita] doon? |
|
Veniza Santos Panem |
Yes, madalas po. |
|
Prosecutor Lao |
Example pumasok siya ngayong Monday, 8 to 5 nandun siya?
Kapag pumapasok siya, usually nandun lang siya sa office? |
|
Veniza Santos Panem |
Yes, your Honor. |
|
Prosecutor Lao |
Nagtatagal ba siya doon? |
|
Veniza Santos Panem |
Hindi po. Mga halfday po. |
|
Prosecutor Lao |
Halfday. Ano usually morning or afternoon? |
|
Veniza Santos Panem |
Morning po. |
|
Prosecutor Lao |
So pag lunchtime umaalis na yan. Tapos babalik bukas na. |
|
Veniza Santos Panem |
Yes, your Honor.[25] |
Furthermore, the NBI report dated 29 October
2010 stated that:
Upon initial investigation of the sampling of
loan folders submitted by Mr. DELFIN LEE for Globe Asiatique, it was discovered
that majority of the fake and/or fraudulent loan documents were notarized by
ATTY. ALEX ALVAREZ, an employee of Pag-IBIG assigned in its Legal Department
and holding office in the HDMF head office. When invited for questioning by the
NBI, ATTY. ALVAREZ admitted that he receives a monthly salary of P30,000 from
Globe Asiatique in exchange for notarizing its documents (regardless of [illegible]).
[Illegible] the borrowers to personally appear before him as the documents are
brought to him for such notarization in batches. He claimed during the
interview that he is not required to secure special permission from the
President of Pag-IBIG to undertake limited practice of law (which includes
notarizing documents) because only those with Salary Grade 23 or lower are
required to secure such permission, and there is no specific provision
governing someone like him with Salary Grade 24.[26]
I cannot countenance Atty. Alvarez's actuations
as that of a "mere" notary public. Atty. Alvarez was the Manager of
HDMF's Foreclosure Department with Salary Grade 24. Despite being Manager of
HDMF's Foreclosure Department, Atty. Alvarez ignored the glaring conflict of
interest when he notarized loan applications with HDMF at the office of Globe
Asiatique where he held office part-time, moonlighting as head of the legal
department of Globe Asiatique. Worse, Atty. Alvarez notarized the loan
applications without the personal appearance of the loan applicants. As Manager
of HDMF's Foreclosure Department, he would be foreclosing on loans with
fictitious borrowers based on mortgage documents that he himself notarized.
Atty. Alvarez probably thought that the fictitious loan applicants would never
be discovered since as Manager of HDMF's Foreclosure Department he had control
of the foreclosures, and he could just expeditiously foreclose the mortgages
without disclosing the fictitious mortgagees. For a monthly salary of P30,000
from Globe Asiatique, Atty. Alvarez made wholesale guarantees that the loan
documents and supporting papers were submitted to him by persons who
"personally appeared before him." Any agreement between Globe
Asiatique and HDMF would not have materialized if it were not for Globe
Asiatique's submission of mortgage documents notarized by Atty. Alvarez. Atty.
Alvarez's participation in the entire scheme was a crucial and necessary step
in Globe Asiatique's inducement of HDMF to release the loan proceeds to Globe
Asiatique.
Syndicated Estafa
The 22 May 2012 Resolution of the Pampanga RTC found probable cause for the
crime of estafa (Article
315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex
Alvarez, and issued warrants of arrest against them with no bail recommended.
Article 315(2)(a) of the RPC reads:
Art. 315. Swindling (estafa). - Any
person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:
x x x x
(2) By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely
pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of other similar
deceits.
PD 1689, which increased the penalty for estafa, if committed by a
syndicate provides:
Section 1. Any person or persons who shall
commit estafa or
other forms of swindling as defined in Articles 315 and 316 of the Revised
Penal Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa)
is committed by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme, and the defraudation results in the misappropriation of money
contributed by stockholders, or members of rural banks, cooperative, "samahang
nayon(s)," or farmers association, or of funds solicited by
corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if
the amount of the fraud exceeds 100,000 pesos.
Under Section 1 of PD 1689, the elements of
syndicated estafa are:
(1) estafa or
other forms of swindling as defined in Articles 315 and 316 of the RPC are
committed; (2) the estafa or
swindling is committed by a syndicate of five or more persons; and (3) the
defraudation results in the misappropriation of money contributed by
stockholders, or members of rural banks, cooperative, "samahang
nayon(s)," or farmers' associations or of funds solicited by
corporations/associations from the general public.[27]
Under PD 1689, syndicated estafa includes
cases where fraud results in the misappropriation of funds solicited by
corporations/associations from the general public. Thus, the law does not
require that the perpetrator or the accused corporation/association be the one
to solicit the funds from the public. The law merely requires that the "defraudation
results in the misappropriation of money x x x or of funds solicited by
corporations/associations from the general public."
The alleged fraud perpetrated resulted in the misappropriation of funds of the
HDMF or PAG-IBIG Fund which is undisputedly a provident fund of the general
public. The PAG-IBIG Fund consists of mandatory contributions solicited by HDMF
from all employees in the public and private sectors. The PAG-IBIG Fund
includes the mandatory contributions of the approximately 28,000 employees of
the Judiciary whose contributions were part of the P2.9 Billion loan proceeds
received by Globe Asiatique from HDMF through the nine (9) FCAs executed by
Globe Asiatique with HDMF. These nine FCAs dated 12 August 2008 (P500 Million),
11 December 2008 (P100 Million), 9 January 2009 (P500 Million), 20 February
2009 (P500 Million), 23 April 2009 (P100 Million), 28 April 2009 (P300
Million), 18 May 2009 (P300 Million), 16 June 2009 (P300 Million), and 10 July
2009 (P300 Million), were executed prior to the execution of the MOA on 13 July
2009.[28] Thus, even before the execution of the MOA
dated 13 July 2009, which Globe Asiatique contends relieves it of its
warranties, estafa was
already consummated.
After the MOA dated 13 July 2009, eight more FCAs were executed between Globe
Asiatique and HDMF totaling P3.55 Billion: 13 July 2009 (P500 Million), 24
September 2009 (P500 Million), 22 October 2009 (P700 Million), 15 December 2009
(P250 Million), 5 January 2010 (P500 Million), 17 March 2010 (P500 Million), 19
March 2010 (P500 Million), and 12 May 2010 (P100 Million).[29] On 24 May 2010, HDMF issued a Notice to Delfin S. Lee for
Globe Asiatique to validate the 351 buyers which were discovered by HDMF to
have either surrendered or withdrawn their loans. In response to the Notice,
Delfin S. Lee admitted that they are monitoring about 1,000 accounts which are
suspected to be from questionable buyers, and that these accounts remain
current with PAG-IBIG because Globe Asiatique had been paying for them.[30] Clearly, Globe Asiatique tried to cover-up or conceal the
defaulting questionable buyers by paying on their behalf, thus keeping their
accounts current. Globe Asiatique is the instrument used to defraud the HDMF of
the PAG-IBIG Fund.
In short, the PAG-IBIG Fund consists of monetary contributions solicited from
the general public by HDMF, which is indisputably a corporate entity. Under
Section 13 of Republic Act No. 7679, "the Fund (HDMF) shall have the
powers and functions specified in this Act and the usual corporate powers."
Under Section 14 of the same law, the "corporate powers and functions of
the Fund shall be vested in and exercised by the Board of Trustees appointed by
the President of the Philippines." The PAG-IBIG Fund is the fund that was
defrauded by Delfin S. Lee and his four (4) co-accused through the use, and
submission to HDMF, of loan applications and mortgage documents of fictitious
loan applicants.
No grave abuse of discretion in trial court's determination of probable
cause
The Pampanga RTC's determination of probable cause, which was in accord with
the findings of the DOJ, shows no grave abuse of discretion. Hence, the claim
of Cristina Salagan that there was no probable cause to charge her with
syndicated estafa deserves
scant consideration.
III. 1. G.R. No. 208744 - Department of Justice
v. Delfin S. Lee
2. G.R. No. 210095 - Department
of Justice v. Delfin S. Lee
Procedural rules may be relaxed under exceptional circumstances
I agree with the ponencia that the CA should not have
dismissed the petitions for being filed out of time because there existed
special and compelling reasons for the relaxation of procedural rules.
Rules of procedure are indispensable to facilitate the orderly and speedy
adjudication of cases. Courts are constrained to adhere to procedural rules
under the Rules of Court. Nevertheless, under Section 6 of Rule 1, courts are
granted the leeway in interpreting and applying the rules:
Sec. 6. Construction. - These Rules
shall be liberally construed in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding.
However, courts are not given carte
blanche authority to interpret rules liberally and the resort to
liberal application of procedural rules remains as the exception to the
well-settled principle that rules must be complied with for the orderly
administration of justice.[31]
Section 4 of Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC,
provides for the period for filing petitions for certiorari:
SECTION 4. When and Where to File the
Petition. - The petition shall be filed not later than sixty (60) days from
notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required
or not, the petition shall be filed not later than sixty (60) days counted from
the notice of the denial of the motion.
x x x x
Although the provision on motion for extension[32] has been deleted in the amended Section 4, such omission
does not automatically mean that a motion for extension is already prohibited.
As held in Domdom v. Third & Fifth Divisions of the Sandiganbayan:[33]
That no mention is made in the x x x amended
Section 4 of Rule 65 of a motion for extension, unlike in the previous
formulation, does not make the filing of such pleading absolutely prohibited.
If such were the intention, the deleted portion could just have simply been
reworded to state that "no extension of time to file the petition shall be
granted." Absent such prohibition, motions for extension are allowed,
subject to the Court's sound discretion.
The 18 June 2013 Petition for Certiorari was
filed before the CA within the extended period requested by petitioner.
However, due to the unintended omission of the docket number (CA-G.R. SP No.
130404), the petition was assigned a new docket number (CA-G.R. SP No. 130409)
and raffled to another ponente and division. This resulted in
the dismissal of the petition for being filed out of time. As explained by
petitioner DOJ, the procedural lapse was due to inadvertence and not intended
to delay the proceedings. Considering the merits of the petition and having
been filed within the extended period requested, albeit lacking the proper docket
number, the CA should have applied the rules liberally and excused the belated
filing.[34] It is more prudent for the court to excuse
a technical lapse to avoid causing grave injustice not commensurate with the
party's failure to comply with the prescribed procedure.[35] Furthermore, the merits of the case may be considered as a
special or compelling reason for the relaxation of procedural rules.[36]
The Pasig RTC disregarded a prior CA and SC ruling on the same issue when
it issued the writ of preliminary injunction
The Petition for Certiorari filed with the CA assailed the 10
April 2013 Order of the Pasig RTC enjoining the continuation of the preliminary
investigation by the DOJ of the Second, Third, and Fourth Criminal Complaints.
The Pasig RTC held that the Summary Judgment dated 30 January 2012 in Civil
Case No. 10-1120 (Makati Civil Case) issued by the Makati RTC eliminates the
element of damage in the criminal complaints against Delfin S. Lee, which is an
integral condition for an estafa case to prosper against the latter. The Pasig
RTC explained:
The Court premised its issuance of the TRO based
on the Makati RTC Branch 58 Summary Judgment dated 30 January 2012 and Order
dated 11 December 2012 declaring the same to be final and executory.
The resolution of the Makati Court required intervenor HDMF to honor the terms
and conditions of the Funding Commitment Agreement and other contracts entered
into between the parties. Clearly thus, intervenor HDMF's performance of its
obligations under the Funding Commitment Agreement, Collection Service
Agreement and Memorandum of Agreement eliminates the element of damage in the
criminal complaints against petitioner which is a condition sine qua
non for an estafa case
to prosper against it [sic]. Note further that although the Court of Appeals
("CA") Decision dissolving the Writ of Preliminary Injunction issued
by this Court in restraining the second criminal complaint had been affirmed
via a petition for review on certiorari, the subsequent rendition of the Summary
Judgment by the Makati RTC 58 constitutes a supervening event to enjoin anew
the proceedings in the second criminal complaint as the rendition of which and
its eventual finality was clearly not yet extant and could not have been
considered by the CA decision when the same was penned. Furthermore, the CA
decision refers only to the injunction order issued by the Court and not to the
Makati RTC 58 case which is still pending at the time. Reliance therefore on
the CA decision as per second criminal complaint can no longer be made in light
of the summary judgment and its finality. In the same vein, the injunction
order should likewise extend to the third and fourth criminal complaints lodged
against herein petitioner for compliance with the Summary Judgment by
intervenor HDMF is concomitant with that of petitioner's compliance with his
own obligations to the buyers considering that the titles of the private
complainants which are presently in the possession of intervenor HDMF ought to
be released and delivered to them, negating the breach being cited by the
private complainants as the underlying premise for the criminal complaints
against petitioner.
In essence, the summary judgment held that there can be no fraud and damages,
an essential element for the crime of estafa, because it is HDMF that approved
the Pag-Ibig membership and loan applications of the private complainants.
x x x x
In the case at bar, grave and irreparable damage would be caused to petitioner
because he will most likely be indicted for another non-bailable offense
despite the fact that the RTC Makati 58 already held that he committed no fraud
against the private complainants. And to expose petitioner to unnecessary
trauma, hardship, inconvenience, anxiety, and fear associated with a criminal
prosecution amounts to grave and irreparable injury which must be prevented.
Premises considered, and without prejudice to the final outcome of the
certiorari proceeding pending against the assailed Summary Judgment of the
Mak.ati RTC 58 on the issue of the existence or non-existence of fraud
committed by the respondent herein against intervenor HDMF and/or private
complainants, the Court finds at this point in time that petitioner has an
existing and valid right to be protected necessitating the issuance of an
injunctive relief in its favor.
WHEREFORE, let a writ of preliminary injunction issue enjoining the Department
of Justice and any other person or panel under its supervision from continuing
with the preliminary investigation of NPS Docket No. XVI-INV-10L-00363, the
Second Criminal Complaint, NPS Docket No. XVI-INV-11B-00063, the Third Criminal
Complaint, and NPS Docket No. XVI-INV-11C-00138, the Fourth Criminal Complaint.
Petitioner is directed to post a bond in the amount of Php2,000,000.00.[37]
As stated in this 10 April 2013 Order of the
Pasig RTC, there was already a prior CA Decision dated 16 April 2012 in CA-G.R.
SP No. 121594 which lifted the previous writ of preliminary injunction issued
by the Pasig RTC in its Order dated 5 September 2011, restraining the DOJ from
proceeding with the preliminary investigation of the Second Criminal Complaint.
The CA ruling annulling the 5 September 2011 Order of the Pasig RTC for having
been issued with grave abuse of discretion was affirmed by this Court in a
Resolution dated 4 July 2012 in G.R. No. 201360. Clearly, the issue of whether
the preliminary investigation of the criminal complaints can be enjoined has
already been ruled upon with finality by this Court, which affirmed the ruling
of the CA in CA-G.R. SP No. 121594, and which decision became final and
executory on 2 January 2013. As ruled by the CA in its Decision dated 16 April
2012 in CA-G.R. SP No. 121594:
Anent the second DOJ case, the resolution of
whether GA is entitled to replace the defaulting buyers/borrowers would not
determine the guilt of Lee as the gravamen of the complaint for estafa filed by
Niebres and Bacani against GA and Lee was the failure of GA to release to them
the title to the respective property which they already paid in full because it
turned out that the properties sold to them were subject of loans under the
name of other persons. In the case of San Nicolas, on the other hand, he was
paying for a property that was also a subject of a loan by another person.
Contrary to public respondent Judge's finding, the acceptance by HDMF of the
replacement buyers that GA is offering will not in any way affect Lee's
liability to Niebres, Bacani, and San Nicolas in selling to them units which
were already sold to other buyers. x x x.
x x x x
What is clear in the second DOJ case is that the properties bought by
complainants were subjects of double sale. The sale by GA of the units, already
paid in full by Niebres, Bacani and still being paid for by San Nicolas, to
other individuals created a temporary disturbance in the rights of the latter
as property owners. Even if the Makati RTC would rule in favor of Lee, Niebres,
Bacani and San Nicolas would not qualify as replacement buyers. Hence, the
preemptive resolution of the civil case before the DOJ could conduct a
preliminary investigation in the second DOJ case would not affect the
determination of guilt or innocence of Lee for estafa.
To reiterate, injunction will not lie to enjoin a criminal prosecution because
public interest requires that criminal acts be immediately investigated and
protected [sic] for the protection of society. It is only in extreme cases that
injunction will lie to stop criminal prosecution. Public respondent Judge
anchored his issuance of the writ on the existence of prejudicial question.
However, this Court finds that the facts and issues in the Makati civil
case are not determinative of Lee's guilt or innocence in the cases filed
before the DOJ. Verily, public respondent Judge committed grave abuse of
discretion amounting to lack or in excess of jurisdiction when he issued the
writ of preliminary injunction enjoining the DOJ from filing an information
for estafa against
Lee in the first DOJ case and from proceeding with the preliminary
investigation in the second DOJ case.[38] (Emphasis
supplied)
Unfortunately, the Pasig RTC chose to ignore
this ruling and issued again an Order for another writ of preliminary
injunction, enjoining the DOJ from continuing with the Second, Third, and
Fourth Criminal Complaints. It should be stressed that the private complainants
in the Second, Third, and Fourth Criminal Complaints are similarly situated:
all of them are alleged victims of double sales by Globe Asiatique and Delfin
S. Lee. Clearly, the issuance of another writ of preliminary injunction by the
Pasig RTC in its 10 April 2013 Order is a blatant disregard of the decision of
this Court (which affirmed the CA Decision dated 16 April 2012 in CA-G.R. SP
No. 121594). The Summary Judgment rendered by the Makati RTC does not determine
the criminal liability of Delfin S. Lee for syndicated estafa in the Second, Third, and Fourth
Criminal Complaints which involve double sales. Besides, the Summary Judgment
merely orders the HDMF to comply with its obligations under the MOA with Globe
Asiatique, including the acceptance of replacement buyers. The acceptance of
replacement buyers contemplates defaulting buyers/borrowers of their loan and
not double sales. The double sales allegedly perpetuated by Globe Asiatique and
Delfin S. Lee in the Second, Third, and Fourth Criminal Complaints, were never
an issue in the Makati Civil Case. In fact, the private complainants in the
Second, Third, and Fourth Criminal Complaints are not parties to the Makati
Civil Case, which was filed by Globe Asiatique and Delfin S. Lee against HDMF, its
Board of Trustees, and OIC Faria. Clearly, the 10 April 2013 Order of the Pasig
RTC is void for having been issued with grave abuse of discretion.
At this juncture, it bears stressing that the general rule is that criminal
prosecution may not be restrained or stayed by injunction or prohibition[39] because public interest requires the immediate and speedy
investigation and prosecution of criminal acts for the protection of society.[40] With more reason will injunction not lie when the case is
still at the preliminary investigation stage.[41] As the court held in Atty. Paderanga v. Drilon:[42]
Preliminary investigation is generally
inquisitorial, and it is often the only means of discovering the persons who
may be reasonably charged with a crime, to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has
no purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof,
and it does not place the person against whom it is taken in jeopardy.
The institution of a criminal action depends upon the sound discretion of the
fiscal. He has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court. Hence, the general rule is that an
injunction will not be granted to restrain a criminal prosecution.
However, there are exceptions to this rule, such
as:
1.
To afford adequate
protection to the constitutional rights of the accused;
2.
When necessary for the
orderly administration of justice or to avoid oppression or multiplicity of
actions;
3.
When there is a
prejudicial question which is sub judice;
4.
When the acts of the
officer are without or in excess of authority;
5.
Where the prosecution is
under an invalid law, ordinance or regulation;
6.
When double jeopardy is
clearly apparent;
7.
Where the court has no
jurisdiction over the offense;
8.
Where there is a case of
persecution rather than prosecution;
9.
Where the charges are
manifestly false and motivated by the lust for vengeance;
10.
When there is clearly no
prima facie case against the accused and a motion to quash on that ground has
been denied;
11.
Preliminary injunction
has been granted by the Supreme Court to prevent the threatened unlawful arrest
of petitioners.[43]
The Pasig RTC case does not fall under any of
these exceptions. Thus, Judge Mislang of the Pasig RTC should not have issued
the writ of preliminary injunction.
To underscore the wrongful actuations of Judge Mislang in handling the HDMF cases
before his sala, this Court dismissed Judge Mislang from the service on 26 July
2016.[44] The pertinent portions of our per
curiam decision read:
Judge Mislang issued two (2) TROs, a writ of
preliminary injunction and a status quo order, both of which
did not satisfy the legal requisites for their issuance, in gross violation of
clearly established laws and procedures which every judge has the duty and
obligation to be familiar with. The antecedent incidents of the case brought
before Judge Mislang were clear and simple, as well as the applicable rules.
Unfortunately, he miserably failed to properly apply the principles and rules
on three (3) points, i.e., the prematurity of the petition,
the inapplicability of the prejudicial question, and the lack of jurisdiction
of the court. His persistent disregard of well-known elementary rules in favor
of Lee clearly reflects his bad faith and partiality.
x x x x
WHEREFORE, PREMISES CONSIDERED, the Court finds Judge Rolando G. Mislang,
Regional Trial Court, Pasig City, Branch 167, GUILTY of Gross Ignorance of the
Law in A.M. No. RTJ-14-2369 and A.M. No. RTJ-14-2372 and ORDERS his DISMISSAL
from the service with FORFEITURE of retirement benefits, except leave credits,
and with prejudice to re-employment in any branch or instrumentality of the
government, including government-owned and controlled corporations.
SO ORDERED.[45]
IV. G.R. No. 209424 - Home Development Mutual Fund
(HDMF) v. Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his
capacity as the President of the corporation, and Tessie G. Wang
Petition for certiorari is the proper remedy
In its Decision dated 7 October 2013 in CA-G.R. SP No. 128262, the CA held that
a summary judgment is a final judgment and that the proper remedy for petitioner
HDMF was to file an ordinary appeal under Rule 41 and not a petition for certiorari under
Rule 65. The CA noted that the petition filed by HDMF lacks: (1) a written
authorization from the OGCC that the Yorac Arroyo Chua Caedo & Coronel Law
Firm or the HDMF Office of the Legal and General Counsel Group is duly
authorized to file the petition; and (2) the written concurrence of the COA for
the OGCC to delegate its duty to represent HDMF to file the petition. The CA
ruled that the HDMF Office of the Legal and General Counsel Group and the Yorac
Arroyo Chua Caedo & Coronel Law Firm had no authority to file the petition
for certiorari. Thus, the CA dismissed the petition for certiorari mainly
on technical grounds.
The CA did not rule on the propriety of the summary judgment, thus:
As to the issue on whether the Summary Judgment
as contained in the first assailed Resolution was rendered in accordance with
the law, particularly Rule 35 of the Rules of Court, and as to the wisdom and
correctness of the Summary Judgment, thereby treating the instant petition as
one of appeal, considering that the case involves paramount public interest, We
refuse to dwell on the matter as the same, as elucidated above, is clearly not
the proper subject of the instant petition for certiorari which
only province is the determination of lack or excess of jurisdiction, or grave
abuse of discretion amounting to lack or excess of jurisdiction.[46]
It should be noted that in its 11 December 2012
Resolution, the Makati RTC held that the Motion for Reconsideration filed by
the Yorac Arroyo Chua Caedo & Coronel Law Firm on behalf of HDMF is
unauthorized and may be deemed a mere scrap of paper which does not toll the
running of the period of appeal. The Makati RTC held that for failure of HDMF
to file a valid motion for reconsideration or appeal of the Resolution dated 30
January 2012 containing the summary judgment, such has become "final,
executory, and immutable" insofar as HDMF is concerned.
The dispositive portion of the 11 December 2012 Resolution reads:
WHEREFORE, premises considered, the Court hereby
resolves to:
1. DENY the motions for reconsideration of the January 30, 2012 Resolution of
this Court filed by defendants Faria and Atty. Berberabe for lack of merit; and
2. NOTE with approval the Manifestation filed by plaintiffs in connection with
the failure of defendant Home Development Mutual Fund (HDMF) to file a motion
for reconsideration or appeal from the January 30, 2012 Resolution of this
Court containing the Summary Judgment which, except as to the exact amount of
damages the plaintiffs are entitled, finally disposes of this case, rendering
the summary judgment herein final, executory, and immutable as to defendant
HDMF.
SO ORDERED.[47]
Clearly, the finality of the judgment as against
HDMF necessitates the filing of a petition for certiorari since
a notice of appeal is barred where the judgment sought to be appealed is
already final and executory. As held in Victory Liner, Inc. v. Malinias:[48]
Thus, the MTC judgment became final and
executory despite the filing of the Motion for Reconsideration thereto, as said
motion did not toll the period for filing an appeal therefrom. Yet that did not
mean that petitioner was left bereft of further remedies under our Rules. For
one, petitioner could have assailed the MTC's denial of the Motion for
Reconsideration through a special civil action for certiorari under
Rule 65 alleging grave abuse of discretion amounting to lack of jurisdiction on
the part of the MTC in denying the motion. If that remedy were successful, the
effect would have been to void the MTC's denial of the Motion for
Reconsideration, thus allowing petitioner to again pursue such motion as a
means towards the filing of a timely appeal.
x x x x
On the other hand, a notice of appeal pursued even with a prior pronouncement
by the trial court that the judgment sought to be appealed was already final is
either misconceived or downright obtuse. It may have been a different matter if
the notice of appeal was undertaken without there being any prior express
ruling from the trial court that the appealed judgment was already final and
that statement was instead expressed at the time the trial court denies the
notice of appeal, for at least in that case, the appellant proceeded with the
appeal with the comfort that the trial court had not yet said that the appeal
was barred. However, as in this case, where the trial court already notified
would be appellant that the judgment was already final, executory and thus
beyond appeal, appellant should suffer the consequences if the notice of appeal
is nonetheless stubbornly pursued.
Similarly, in this case, the Motion for
Reconsideration filed by HDMF was held unauthorized by the Makati RTC and
deemed a mere scrap of paper which did not toll the running of the period of
appeal. Thus, compared to Faria and Atty. Berberabe whose motions for
reconsideration were denied for lack of merit, the Makati RTC ruled that the
summary judgment is "final, executory, and immutable as to defendant
HDMF." In light of this ruling, HDMF had to file a petition for certiorari,
while Faria and Atty. Berberabe filed their notice of appeal.
Furthermore, where there is absolutely no legal basis for the rendition of a
summary judgment, a petition for certiorari is the
appropriate, adequate, and speedy remedy to nullify the assailed judgment to
prevent irreparable damage and injury to a party. As held in Cadirao v.
Judge Estenzo:[49]
Anent the propriety of the remedy availed of by
the petitioners, suffice it to state, that although appeal was technically
available to them, certiorari still lies since such appeal does not prove to be
a speedy and adequate remedy. Where the remedy of appeal cannot afford an
adequate and expeditious relief, certiorari can be allowed as a mode of redress
to prevent irreparable damage and injury to a party. Certiorari is a more
speedy and efficacious remedy of nullifying the assailed summary judgment there
being absolutely no legal basis for its issuance. Moreover, the records show
that private respondent had already moved for the issuance of a writ of
execution and that respondent Judge merely held in abeyance resolution of the
same pending resolution by this Court of the instant petition. Clearly then,
even if appeal was available to the petitioners, it is no longer speedy and
adequate.
The propriety of certiorari as
the more speedy and adequate remedy is underscored by the fact that respondents
Globe Asiatique and Delfin S. Lee have already filed a Motion for Execution[50] dated 19 March 2013 against HDMF. HDMF contends that if the
motion is granted, HDMF will be required to release hundreds of millions or
billions of pesos, money which came from the hard-earned contributions of HDMF
members, in favor of Globe Asiatique. Moreover, HDMF posits that it will also
be compelled to accept the replacement buyers offered by Globe Asiatique, whose
accounts may be equally spurious as those of the original buyers whose
applications were approved by Globe Asiatique.[51]
On the alleged unauthorized representation of the Yorac Arroyo Chua Caedo &
Coronel Law Firm on behalf of HDMF, the records show that the OGCC in fact
authorized HDMF to engage the services of the said private law firm as
evidenced by the letters dated 28 December 2010[52] and 5 December 2011[53] signed by
Government Corporate Counsel Raoul C. Creencia. Furthermore, in the COA
Certification dated 10 January 2013,[54] COA Corporate
Auditor Atty. Fidela M. Tan attested that the COA has concurred in the retainer
agreement between HDMF and the Yorac Arroyo Chua Caedo & Coronel Law Firm.
Clearly, the Yorac Arroyo Chua Caedo & Coronel Law Firm is vested with the
proper authority to represent HDMF, and was in fact authorized to file the
Motion for Reconsideration dated 17 February 2012 on behalf of HDMF.
Summary Judgment is not proper because there are genuine issues of
material facts
The Makati RTC Resolution dated 30 January 2012 granted the Motion for Summary
Judgment filed by Globe Asiatique and Delfin S. Lee against HDMF, and ordered
the latter to comply with its obligations under the MOA, FCAs, and CSAs. The
dispositive portion of the resolution states:
WHEREFORE, premises considered, a Summary
Judgment is hereby rendered declaring that:
1. Plaintiffs have proven their case by preponderance of evidence. As such,
they are entitled to specific performance and right to damages as prayed for in
the Complaint, except that the exact amount of damages will have to be
determined during trial proper[;]
2. Pursuant to the provisions of their MOA amending the continuing FCAs and
CSAs, defendant HDMF is hereby ordered to comply faithfully and religiously
with its obligations under the said contracts, including but not limited to the
release of loan take-out proceeds of those accounts whose Deed[s] of Assignment
with Special Power of Attorney have already been annotated in the corresponding
Transfer Certificate of Title covering the houses and lots purchased by the PAG-IBIG
member-borrowers from plaintiff GARHC as well as the evaluation of the loan
applications of those who underwent or will undergo plaintiff GARHC's loan
counseling and are qualified for PAG-IBIG FUND loans under the MOA and
continuing FCAs and process the approval thereof only if qualified, under the
Window 1 Facility as provided for in the MOA and continuing FCAs;
3. The unilateral cancellation by defendant HDMF of the continuing FCAs
specifically the latest FCAs of December 15, 2009, January 5 and March 17, 2010
and CSA dated 10 February 2009, is hereby SET ASIDE[;]
4. Defendants are ordered to automatically off-set the balance of those listed
in Annex "E" of the Motion for Summary Judgment against the retention
money, escrow money, funding commitment fee, loan take-out proceeds and other
receivables of plaintiff GARHC which are still in the control and possession of
defendant HDMF;
5. Defendants are ordered to accept the replacement-buyers listed in Annex
"F" of the Motion for Summary Judgment, which list is unopposed by
defendants, without interest or penalty from the time of defendant HDMF's
cancellation of the Collection Servicing Agreement (CSA) resulting to the
refusal to accept the same up to the time that these replacement buyers are
actually accepted by defendant HDMF;
6. Defendants are ordered to release the corresponding Transfer Certificate of
Title[s] (TCTs) of those accounts which are fully paid or subjected to
automatic off-setting starting from the list in Annex "E" of the
Motion for Summary Judgment and thereafter from those listed in Annex
"F" thereof and cause the corresponding cancellation of the
annotations in the titles thereof.
Let this case be set for the presentation of evidence on the exact amount of
damages that plaintiffs are entitled on March 12, 2012 at 8:30 in the morning.
SO ORDERED.[55]
A summary judgment is a procedural technique
designed to promptly dispose of cases where the facts appear undisputed and
certain from the pleadings, depositions, admissions, and affidavits on record.[56] The purpose of summary judgment is to grant immediate relief
in cases where no genuine triable issue of fact is raised, and thus avoid
needless trials and delays. Summary judgment should not be granted unless the
records show with certainty that there is no disputable issue as to any
material fact which would prevent recovery from the party presenting the motion
for summary judgment if a full-blown trial is conducted. The party who moves
for summary judgment has the burden of proving the absence of any genuine issue
as to any material fact or that the issue posed is patently unsubstantial and
does not constitute a genuine issue for trial.[57]
Summary judgment is provided under Rule 35 of the 1997 Rules of Civil
Procedure. Sections 1 and 3 of Rule 35 read:
Section 1. Summary judgment for claimant.
- A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief, at any time after the pleading in answer thereto
has been served, move with supporting affidavits, depositions or admissions for
a summary judgment in his favor upon all or any part thereof.
Section 3. Motion and proceedings thereon. - The motion shall be
served at least ten (10) days before the time specified for the hearing. The
adverse party may serve opposing affidavits, depositions, or admissions at
least three (3) days before the hearing. After the hearing, the judgment sought
shall be rendered forthwith if the pleadings, supporting affidavits,
depositions, and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
Section 3 of Rule 35 provides two requisites for
the grant of a summary judgment: (1) there must be no genuine issue as to any
material fact, except for the amount of damages; and (2) the party presenting
the motion for summary judgment must be entitled to a judgment as a matter of
law. Thus, where the pleadings tender a genuine issue which requires the
presentation of evidence, the rendition of a summary judgment is not proper. A
"genuine issue" is an issue of fact which requires the presentation
of evidence as distinguished from a sham, fictitious, contrived, or false
claim.[58]
Contrary to the ruling of the Makati RTC, the pleadings of the parties show the
existence of genuine issues of material facts, rendering the summary judgment
improper.
In its Complaint dated 13 November 2010,[59] Globe Asiatique
claims that: (1) Globe Asiatique has the right to replace the buyers/borrowers
who have been delinquent for whatever reason and that the refusal of Pag-IBIG
Fund [HDMF] to accept the replacements violated Globe Asiatique 's rights to
exercise the remedies available to it under the provisions of the MOA and FCA;
(2) Pag-IBIG Fund's precipitate cancellation of the latest FCA and its refusal
to release the collectibles/loan take-outs to which Globe Asiatique is entitled
caused the latter's failure to comply with its obligations under the MOA and
FCA; and (3) Pag-IBIG Fund's cancellation of the latest FCA and CSA was
intended to cause Globe Asiatique to fail to comply with its obligations under
the MOA and as a consequence lose its incentives for its good performance for
the past years and the potential to earn under the agreements.
On the other hand, in its Answer with Compulsory Counterclaim dated 8 December
2010,[60] HDMF refutes Globe Asiatique's claims, thus:
(1) HDMF has the right to terminate the agreements because of Globe Asiatique's
"grand fraudulent scheme through the creation of ghost buyers and
fabrication of loan documents" which violates the 13 July 2008 MOA and the
5 January 2010 FCA; (2) the alleged defaulting buyers/borrowers sought to be
replaced by Globe Asiatique are in fact fake and fictitious buyers/borrowers;
(3) under Section 3.7 (Buyback of Accounts) of the FCA, the remedy of buyback
of accounts can only be availed of after receipt of the Notice of Buyback,
which Pag-IBIG Fund did not issue for the 400 accounts mentioned by Globe
Asiatique in its Complaint, which Globe Asiatique unilaterally canceled; (4)
Section 3.7 of the FCA applies only in case of default and not when the cause
for buyback is fraud or breach by Globe Asiatique of any of its warranties; (5)
the CSA was canceled due to Globe Asiatique's failure to remit the amortization
collections for the periods covering August 2-6, 2010 and August 9-13, 2010;
(6) Pag-IBIG Fund canceled the 15 September 2010 FCA because of Globe
Asiatique's failure to: a) buyback CTS accounts, other than the 400 accounts
mentioned in Globe Asiatique's Complaint which Globe Asiatique unilaterally
canceled and which were not subjected to Notices of Buyback by Pag-IBIG Fund;
and b) remit the collection covering monthly installment payments of housing
loan accounts under the CSA; and (7) Globe Asiatique violated its undertaking
and warranty under Sections 3.1[61] and 7.1[62] of the FCA when it approved loan applications which were not
eligible under the Pag-IBIG Housing Loan Program.
It is very apparent from the allegations in the parties' respective pleadings
that there exist relevant genuine issues which require the presentation of
evidence and which need to be resolved in a full-blown trial Summary judgment
cannot take the place of trial since the facts as pleaded by Globe Asiatique
are categorically disputed and contradicted by HDMF.
Thus, the CA Decision dated 7 October 2013 in CA-G.R. SP No. 128262 should be
reversed and the 30 January 2012 and 11 December 2012 Resolutions of the Makati
RTC in Civil Case No. 10-1120 should be annulled and set aside. The case should
be remanded to the Makati RTC for trial on the merits.
For the orderly disposition of these cases, my vote is summarized as follows:
I. DOJ Review Resolution dated 10 August 2011
1.
G.R.
No. 205698 - Home
Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2.
G.R.
No. 205780 - Department
of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M.
Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of
Investigation v. Christina Sagun
The petitions filed by HDMF and DOJ should
be GRANTED. The 5 October 2012 Decision and the 11 February 2013
Resolution in CA-G.R. SP No. 121346 should be REVERSED. The Warrant
of Arrest issued in Criminal Case No. 18480 before RTC Branch 42 of San
Fernando, Pampanga against Christina Sagun should be REINSTATED.
II. Pampanga RTC Resolutions dated 22 May 2012 and 22 August 2012
1.
G.R.
No. 209446 - People
of the Philippines v. Alex M. Alvarez
2.
G.R.
No. 209489 - Home
Development Mutual Fund v. Atty. Alex M. Alvarez
3.
G.R.
No. 209852 - Home
Development Mutual Fund (HDMF) v. Delfin S. Lee
4.
G.R.
No. 210143 - People
the Philippines v. Delfin S. Lee
5.
G.R.
No. 228452 - Home
Development Mutual Fund (HDMF) v. Dexter L. Lee
6.
G.R.
No. 228730 - People
of the Philippines v. Dexter L. Lee
7.
G.R.
No. 230680 - Cristina
Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
The petitions filed by HDMF and OSG should
be GRANTED. The 3 October 2013 Decision in CA-G.R. SP No. 127690,
the 7 November 2013 Decision in CA-G.R. SP No. 127553, and the 16 November 2016
Decision in CA-G.R. SP No. 127554 should be REVERSED. The Warrants
of Arrest issued in Criminal Case No. 18480 before RTC, Branch 42 of San
Fernando, Pampanga against Delfin S. Lee, Dexter L. Lee, and Atty. Alex M.
Alvarez should be REINSTATED. The petition filed by Cristina
Salagan should be DISMISSED, and the Decision dated 18 March 2016
in CA-G.R. SP No. 134573 should be AFFIRMED.
III. Pasig RTC Order dated 10 April 2013
1.
G.R.
No. 208744 - Department
of Justice v. Delfin S. Lee
2.
G.R.
No. 210095 - Department
of Justice v. Delfin S. Lee
The CA Resolutions dated 14 August 2013 in
CA-G.R. SP No. 130404 and the CA Resolution dated 26 June 2013 in CA-G.R. SP
No. 130409 should be REVERSED. The Order dated 10 April 2013 of the
Pasig RTC in Civil Case No. 73115-PSG, issuing the writ of preliminary
injunction enjoining the DOJ from continuing the preliminary investigation of
the Second, Third, and Fourth Criminal Complaints should be ANNULLED and SET
ASIDE.
IV. Makati RTC Resolutions dated 30 January 2012 and 11 December 2012
1.
G.R.
No. 209424 - Home
Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation,
Delfin S. Lee, in his capacity as the President of the corporation, and Tessie
G. Wang
The CA Decision dated 7
October 2013 in CA-G.R. SP No. 128262 should be REVERSED and
the 30 January 2012 and 11 December 2012 Resolutions of the Makati RTC in Civil
Case No. 10-1120 should be ANNULLED and SET ASIDE.
The case should be REMANDED to the Makati RTC for trial on the
merits.
[1] Rollo (G.R. No. 205698), Vol. I, pp. 56-57.
[2] Rollo (G.R. No. 208744), p.
122.
[3] Id. at 118-121.
[4] Id. at 198.
[5] Home Development Mutual Fund v. The
Hon. Eugene S. Paras, in his official capacity as the Presiding Judge of Branch
58 of the Regional Trial Court of Makati, Globe Asiatique Realty Holdings
Corporation, Delfin S. Lee, in his capacity as President of the corporation and
Tessie G. Wang.
[6] Globe Asiatique Realty Holdings
Corporation and Delfin S. Lee, in his capacity as President of the corporation
v. Home Development Mutual Fund (HDMF) or PAG-IBIG Fund, its Board of Trustees
and Emma Linda Faria, Officer-in-Charge.
[7] Rollo (G.R. No. 209424), Vol.
I, pp. 14-34.
[8] Rollo (G.R. No. 209446), Vol.
I, pp. 31-32.
[9] Delfin Lee v. Ma. Amifaith S.
Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando,
Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
[10] People v. Delfin S. Lee, Dexter L. Lee,
Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, docketed as
Criminal Case No. 18480 for syndicated estafa under Article 315(2)(a) of the RPC
in relation to Section 1 of PD 1689, as amended.
[11] Rollo (G.R. No. 209852), Vol.
I, pp. 42-43.
[12] Delfin S. Lee v. Ma. Amifaith S.
Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando,
Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
[13] Dexter L. Lee v. Ma. Amifaith S.
Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando,
Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
[14] People of the Philippines v. Delfin S.
Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez,
docketed as Criminal Case No. 18480 for syndicated estafa under Article 315(2)(a) of the RPC
in relation to Section 1 of PD 1689, as amended.
[15] Rollo (G.R. No. 228730), pp.
32-33.
[16] Rollo (G.R. No. 230680), Vol.
I, p. 365.
[17] DOJ Department Circular No. 70 dated 6
July 2000.
[18] Review Resolution, pp. 19-20.
[19] Id. at 41.
[20] Id. at 40-41, 44-45. Boldfacing in the
original.
[21] 533 Phil. 796, 807-808 (2006). Italicization
in the original.
[22] 582 Phil. 505, 518-520 (2008)
[23] Santos v. COMELEC, 447 Phil. 760
(2003).
[24] 640 Phil. 620, 650-651 (2010).
[25] Rollo (G.R. No. 209446), pp.
2550-2563.
[26] Id. at 722.
[27] Belita v. Sy, 788 Phil. 581,
588-589 (2016); People v. Tibayan, 750 Phil. 910, 920 (2015).
[28] Rollo (G.R. No. 209424), p.
810.
[29] Id. at 812.
[30] Id. at 814.
[31] People v. Espinosa, 731 Phil. 615,
627-628 (2014), citing Building Care Corp./Leopard Security &
Investigation Agency v. Macaraeg, 700 Phil. 749, 755 (2012).
[32] Prior to its deletion in the amendment,
Section 4 of Rule 65 provides that "No extension of time to file the
petition shall be granted except for the most compelling reason and in no case exceeding
fifteen (15) days."
[33] 627 Phil. 341, 347-348 (2010).
[34] In Castells v. Saudi Arabian
Airlines, 716 Phil. 667, 673-674 (2013), the Court cited the case of Labao
v. Flores, 649 Phil. 213, 222-223 (2010), for the list of exceptions to the
strict application of procedural rules, thus:
(1) most persuasive and weighty reasons;
(2) to relieve a litigant from an injustice not commensurate with his failure
to comply with the prescribed procedure;
(3) good faith of the defaulting party by immediately paying within a
reasonable time from the time of default;
(4) the existence of special or compelling circumstances; (5) the merits of the
case;
(6) a cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules;
(7) a lack of any showing that the review sought is merely frivolous or
dilatory;
(8) the other party will not be unjustly prejudiced thereby;
(9) fraud, accident, mistake or excusable negligence without appellant's fault;
(10) peculiar legal and equitable circumstances attendant to each case;
(11) in the name of substantial justice and fair play;
(12) importance of the issues involved; and
(13) exercise of sound discretion by the judge guided by all the attendant
circumstances.
[35] Philippine Bank of Communications v.
Court of Appeals, G.R. No. 218901, 15 February 2017, 818 SCRA 68,
citing Tanenglian v. Lorenzo, 573 Phil. 472 (2008).
[36] Bases Conversion Dev't. Authority v.
Reyes, 711 Phil. 631, 643 (2013), citing Twin Towers Condominium
Corp. v. Court of Appeals, 446 Phil. 280, 298-299 (2003).
[37] Rollo (G.R. No. 208744), pp.
196-198.
[38] Id. at 650-652.
[39] Camanag v. Guerrero, 335 Phil. 945
(1997); Atty. Paderanga v. Hon. Drilon, 273 Phil. 290 (1991).
[40] Domingo v. Sandiganbayan, 379 Phil.
708 (2000).
[41] Samson v. Secretary Guingona, Jr.,
401 Phil. 167 (2000); Guingona v. The City Fiscal of Manila, 222
Phil. 119 (1985).
[42] 273 Phil. 290, 296 (1991).
[43] People v. Grey, 639 Phil. 535, 551
(2010), citing Brocka v. Ponce Enrile, 270 Phil. 271, 276-277
(1990). (Citations omitted)
[44] Department of Justice v. Mislang,
791 Phil. 219 (2016).
[45] Id. at 228-229, 232.
[46] Rollo (G.R. No. 209424), p.
32.
[47] Id. at 459.
[48] 551 Phil. 273, 290-292 (2007).
[49] 217 Phil. 93, 102 (1984).
[50] Rollo (G.R. No. 209424), pp.
1868-1882.
[51] Id. at 271.
[52] Id. at 1494-1495. The letter dated 28
December 2010 states:
This refers to your request for authority to
engage the services of external counsel who will handle the cases filed by or
against Globe Asiatique Holdings Corp.
In view thereof, and pursuant to Office of the Government Corporate Counsel
(OGCC) Memorandum Circular 1, Series of 2002 in conjunction with Republic Act
3838 and Memorandum Circular 9 dated 29 August 1998, Home Development Mutual
Fund (HDMF) is hereby authorized to engage the services of Raquel Wealth A.
Taguian and Yorac Arroyo Chua Caedo & Coronel Law Firm to handle the aforesaid
cases, subject to the control and supervision of the OGCC. This authority does
not amount to an endorsement of the compensation of the lawyers to be engaged,
which we leave to the sound discretion of management mindful of Commission on
Audit rules and regulations.
x x x x
[53] Id. at 1496-1497. The letter dated 28 December 2010 states:
This confirms and ratifies the engagement of
external counsel for the handling of the cases filed by or against the Globe
Asiatique Holdings Corporation, and such other cases that arose out of or in
relation to the Globe Asiatique Corporation issues.
In view thereof, and pursuant to this Office's Memorandum Circular 1, Series of
2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated 29
August 1998, we confirm and ratify the engagement of Yorac Arroyo Chua Caedo
& Coronel Law Firm to handle such cases, subject to the control and
supervision of this Office. This authority does not amount to an endorsement of
the compensation of the lawyers to be engaged, which we leave to the sound
discretion of management mindful of Commission on Audit rules and regulations.
x x x x
[54] Id. at 1493. The COA Certification states:
This is to certify that the Commission on Audit
(COA) has concurred in the Retainer Agreement entered into by and between the
Home Development Mutual Fund (HDMF) and Yorac Arroyo Chua Caedo & Coronel
Law Firm, for the latter to provide legal services to the HDMF in connection
with the cases filed by or against Globe Asiatique Realty Holdings Corporation,
Mr. Delfin S. Lee, its officers, employees and agents, and such other cases
that arose out of or in relation to the Globe Asiatique Realty Holdings Corporation
issues.
[55] Id. at 451-452.
[56] Phil. Countryside Rural Bank (Liloan,
Cebu), Inc. v. Taring, 603 Phil. 203 (2009).
[57] YKR Corporation v. Philippine
Agri-Business Center Corp., 745 Phil. 666, 685-686 (2014), citing Viajar
v. Judge Estenzo, 178 Phil. 561, 573 (1979).
[58] Phil. Countryside Rural Bank (Liloan,
Cebu), Inc. v. Toring, supra note 56; Nocom v. Camerino, 598
Phil. 214 (2009).
[59] Rollo (G.R. No. 209424), pp.
753-774.
[60] Id. at 776-831.
[61] Section 3.1. The DEVELOPER shall receive,
evaluate, process and approve the housing loan applications of its
member-buyers in accordance with the applicable Guidelines of the Pag-IBIG
Housing Loan Program. The DEVELOPER shall likewise be responsible for the
annotation of the Deeds of Assignment with Special Power of Attorney (DOA with
SPA)/Loan and Mortgage Agreement (LMA) for accounts covered by the CTS and REM
respectively, on the Individual Certificates of Title covering the house and
lot units subject of the loan with the appropriate Register of Deeds (RD), and
shall deliver the complete mortgage folders to Pag-IBIG Fund.
[62] Section 7.1. LOAN EVALUATION - The
DEVELOPER warrants that the member-borrowers and their respective housing loan
applications have been properly evaluated and approved in accordance with the
applicable Guidelines of the Pag-IBIG Housing Loan Program prior to their
endorsement to Pag-IBIG Fund.
SEPARATE OPINION
PERLAS-BERNABE, J.:
I. G.R. Nos. 205698, 205780, 209446, 209489,
209852, 210143, 228452, 228730, and 230680.
These petitions commonly relate to the determination of probable cause against
herein respondents Delfin S. Lee (Delfin Lee), Dexter L. Lee (Dexter Lee),
Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty. Alex M. Alvarez
(Alvarez; collectively respondents). In particular:
(a) The petitions in G.R. Nos. 205698[1] and 205780[2] were respectively
filed by petitioners, the Home Development Mutual Fund (HDMF; also known as
Pag-IBIG) and the Department of Justice (DOJ), to assail the Court of Appeals'
(CA) Rulings[3] in CA-G.R. SP No. 121346 which set aside
the DOJ's Review Resolution[4] dated August 10,
2011 finding probable cause to indict Sagun, among others, for the crime of
syndicated estafa,
and ordered the dismissal of the case and the quashal of the warrant of arrest
issued against her;
(b) The petitions in G.R. Nos. 209446[5] and 209489[6] were respectively
filed by petitioners, the People of the Philippines (People) and HDMF, to
assail the CA's Ruling[7] in CA-G.R. SP No. 127690 which annulled
and set aside the Regional Trial Court (RTC) of Pampanga, Branch 42's (Pampanga
RTC) May 22, 2012 Resolution[8] and August 22,
2012 Resolution[9] judicially finding probable cause against
Alvarez, inter alia, for the same crime of syndicated estafa, and
hence, ordered the dismissal of the case and the quashal of the warrant of
arrest issued against him;
(c) The petitions in G.R. Nos. 209852[10] and 210143[11] were respectively
filed by HDMF and the People to assail the CA's ruling[12] in CAG.R. SP No. 127553 which also annulled and set aside
the aforesaid Pampanga-RTC's May 22, 2012 Resolution[13] and August 22, 2012 Resolution[14] judicially finding probable cause against Delfin Lee,
inter alia, for the same crime of syndicated estafa, and ordered the dismissal of the
case and the quashal of the warrant of arrest issued against him;
(d) The petitions in G.R. Nos. 228452[15] and 228730[16] were respectively
filed by HDMF and the People to assail the CA's Ruling[17] in CA-G.R. SP No. 127554 which also annulled and set aside
the Pampanga-RTC Resolutions[18] judicially finding
probable cause against Dexter Lee, inter alia, for the same crime of
syndicated estafa,
and ordered the dismissal of the case and the quashal of the warrant of arrest
issued against him; and
(e) The petition in G.R. No. 230680[19] filed by Salagan assails the CA's March 18, 2016 Decision[20] and March 16, 2017 Resolution[21] in CA-G.R. SP No. 134573 which affirmed the Pampanga-RTC's
May 22, 2012 Resolution[22] and January 29, 2014 Resolution,[23] and accordingly, upheld the latter court's finding of
probable cause for syndicated estafa and issuance of warrant of
arrest insofar as Salagan is concerned.
These cases stemmed from the HDMF's filing of a Complaint-Affidavit[24] for syndicated estafa, as defined and penalized under
Article 315 (2) (a) of the Revised Penal Code (RPC) in relation to Presidential
Decree No. (PD) 1689,[25] and the National Bureau of Investigation's
(NBI) referral letter dated October 29, 2010,[26] by virtue of which, the DOJ conducted a preliminary
investigation[27] against respondents, along with several
others. In brief, it was alleged that Delfin Lee, as the President and Chief
Executive Officer of petitioner Globe Asiatique Realty Holdings Corporation
(GA), entered into funding commitment agreements and other transactions with
HDMF wherein he made false and fraudulent representations to HDMF that GA had
interested buyers in its Xevera projects in Bacolor and Mabalacat, Pampanga,
when in truth, Delfin Lee knew fully well that the corporation did not have
such buyers.[28] The fraud against HDMF was allegedly
perpetrated by the submission by GA of names of fictitious buyers and documents
to HDMF as part of certain housing loan applications that led to fund releases
by HDMF in favor of GA.[29] In addition, GA purportedly employed a
"special buyers" scheme whereby it recruited persons who did not have
any intention to buy its housing units in Xevera, but, in exchange for a fee,
lent their names and Pag-IBIG membership to GA so that the said corporation
could use the same in obtaining fund releases from HDMF.[30] As stated in the Information, Delfin Lee, together with
Dexter Lee, Sagun, and Salagan, in their respective capacities as Executive
Vice-President/Chief Finance Officer/Treasurer, Documentation Department Head,
and Accounting/Finance Department Head of GA,[31] as well as Alvarez, as Foreclosure Department Manager of
HDMF,[32] acted as a syndicate formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme of soliciting funds from the general public, each performing a
particular act in furtherance of the common design.
After due proceedings, the DOJ issued a Review Resolution[33] dated August 10, 2011 (DOJ Review Resolution) finding
probable cause to indict respondents for the crime complained of. The DOJ found
that the elements of syndicated estafa are present in the instant
case, considering that: (a) GA entered into various Funding Commitment
Agreements (FCAs)[34] and a Memorandum of Agreement (MOA)[35] with HDMF whereby the former warranted, inter alia,
that the borrowers are bonafide Pag-IBIG members who had been
properly evaluated and approved in accordance with the guidelines of Pag-IBIG
Housing Loan Program; (b) by virtue of the said FCAs and MOA, HDMF was
induced to release to GA the aggregate amount of P7,007,806,000.00; (c)
GA had reneged on said warranties as it, among others, employed fictitious
buyers to be able to obtain said funds from HDMF; (d) when HDMF
discovered such irregularities and stopped its fund releases to GA, the
latter's almost 100% monthly collection/remittance stopped as well, thereby
strongly indicating that the monthly amortizations being remitted by GA were
being paid from the fund releases it was receiving from HDMF; and (e)
HDMF was prejudiced in the amount of P6,653,546,000.00 which has yet to be
returned by GA.[36]
Accordingly, the Information[37] for
syndicated estafa was
filed before the Pampanga-RTC.[38] Later, the said
court, in a Resolution[39] dated May 22, 2012, judicially determined
the existence of probable cause against respondents, and consequently, ordered
the issuance of warrants of arrest against them. Through various proceedings in
different fora, respondents assailed the finding of probable cause against
them, and eventually, such issue was raised before the Court through the
aforesaid petitions.
The ponencia partially granted the petitions in G.R. Nos.
205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730, and 230680 in
that it found probable cause to prosecute Delfin Lee, Dexter Lee, Sagun,
Salagan, and Alvarez for simple estafa only, as defined and penalized
under Article 315 (2) (a) of the RPC, and accordingly, directed the DOJ to
amend the respondents' Information to reflect such indictment. The ponencia ruled
that there is sufficient basis to support a reasonable belief that respondents,
namely: Delfin Lee, Dexter Lee, Sagun, Salagan, and Alvarez were probably
guilty of simple estafa.
It ratiocinated that through the representations and undertakings made by GA in
its "special buyers" scheme, these respondents were able to induce
HDMF in entering into the various FCAs to the latter's damage and prejudice.
The ponencia went on to particularize the respondents'
individual acts which made them criminally accountable for perpetrating the
"special buyers" scheme, as follows: (a) Delfin Lee, for
signing the FCAs and MOA in behalf of GA, and the checks issued by GA to the
"special buyers" and HDMF; (b) Dexter Lee, for giving the
orders to recruit "special buyers" and co-signing those checks issued
to the "special buyers" and HDMF; (c) Sagun, as head of GA's
Documentation Department, for collating the documents submitted by the
borrowers/buyers, checking if the same are complete and duly accomplished, and
verifying whether or not the said borrowers/buyers are indeed Pag-IBIG members
with updated contributions or existing housing loans; (d) Salagan, as
head of GA's Accounting/Finance Department, for reviewing all requests for
payment from on-site projects and preparing the corresponding checks, ensuring
that all loan takeouts are duly recorded, and that amortizations are timely
remitted to HDMF; and (e) Alvarez, for notarizing crucial pieces of
documents purportedly from affiants who turned out to be fictitious and/or
non-existing, which directly led to HDMF releasing its funds to GA.[40]
However, the ponencia held that respondents cannot be indicted
for syndicated estafa,
pointing out that the association of the said respondents did not solicit funds
from the general public as there was no allegation that GA had been
incorporated to defraud its stockholders or members, and that in fact, the only
complainant in the estafa charges
is a single juridical entity, i.e., HDMF, which is not a
stockholder or member of GA.[41]
Stripped of its technicalities[42] and as will be
explained hereunder, I agree with the ponencia in: (a)
finding probable cause to indict respondents Delfin Lee, Dexter Lee, Sagun,
Salagan, and Alvarez for simple estafa only, and not syndicated estafa; and (b)
directing the DOJ to amend the Information against them accordingly.
Article 315 (2) (a) of the RPC reads:
Art. 315. Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished by:
x x x x
2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions; or by means of other similar deceits.
The elements of estafa as contemplated in this
provision are the following: (a) that there must be a false pretense or
fraudulent representation as to his power, influence, qualifications, property,
credit, agency, business or imaginary transactions; (b) that such false
pretense or fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud; (c) that the offended
party relied on the false pretense, fraudulent act, or fraudulent means and was
induced to part with his money or property; and (d) that, as a result
thereof, the offended party suffered damage.[43]
In relation thereto, Section 1 of PD 1689 states that syndicated estafa is
committed as follows:
Section I. Any person or persons who shall
commit estafa or
other forms of swindling as defined in Articles 315 and 316 of the Revised
Penal Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa)
is committed by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme, and the defraudation results in the misappropriation of money
contributed by stockholders, or members of rural banks, cooperative, "samahang
nayon(s)," or farmers' association, or funds solicited by
corporations/associations from the general public.
Thus, the elements of syndicated estafa are:
(a) estafa or
other forms of swindling, as defined in Articles 315 and 316 of the RPC, is
committed; (b) the estafa or swindling is committed by a syndicate of five
(5) or more persons; and (c) defraudation results in the
misappropriation of moneys contributed by stockholders, or members of rural banks,
cooperative, "samahang nayon(s)," or farmers' association, or
of funds solicited by corporations/associations from the general public.[44]
With these in mind, it is my opinion that there is probable cause to believe
that estafa under
Article 315 (2) (a) of the RPC was committed by all of the respondents,
considering that HDMF was induced to enter into various FCAs and a MOA with GA
based on its understanding that GA would only process the applications of bona
fide Pag-IBIG members who have been properly evaluated and approved in
accordance with the program's housing guidelines. Because of the execution of
such FCAs and MOA, HDMF released funds to GA via numerous loan takeouts for the
latter's Xevera Project. However, unknown to HDMF, GA implemented fraudulent
designs, such as the "special buyers" scheme, to make it appear that
it had various buyers/borrowers for the Xevera Project, when in truth, most of
such buyers/borrowers were fictitious, not qualified to avail of such loans, or
even persons who merely signed documents in exchange for money offered to them
by GA. Case law states that:
Deceit is the false representation of a matter
of fact whether by words or conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed which deceives or is
intended to deceive another so that he shall act upon it to his legal injury.[45]
In this case, HDMF was evidently prejudiced by
the scheme employed by GA, through its officers and agents, as HDMF unduly
released public funds to GA, which it had yet to recover. In fact, as soon as
HDMF stopped its fund releases to GA, the latter's Performing Accounts Ratio
for the Xevera Project went from 95% to 0%.
Notably, the foregoing is based on either undisputed facts or the audit findings
conducted by HDMF functionaries. Anent the latter, the audit conducted by HDMF
was made pursuant to its investigatory powers which is incidental to its power
"[t]o ensure the collection and recovery of all indebtedness, liabilities
and/or accountabilities, including unpaid contributions in favor of the Fund
arising from any cause or source or whatsoever, due from all obligors, whether
public or private x x x" under Section 13 (q) of Republic Act No. (RA)
9679,[46] known as "Home Development Mutual
Fund Law of 2009, otherwise known as Pag-IBIG (Pagtutulungan sa Kinabukasan:
Ikaw, Bangko, Industriya at Gobyerno) Fund." Therefore, it cannot be
denied that the audit was an official function, which hence, must be accorded
the presumption of regularity. Case law states that "[t]he presumption of
regularity of official acts may be rebutted by affirmative evidence of
irregularity or failure to perform a duty. The presumption, however, prevails
until it is overcome by no less than clear and convincing evidence to the
contrary. Thus, unless the presumption is rebutted, it becomes conclusive.
Every reasonable intendment will be made in support of the presumption and in
case of doubt as to an officer's act being lawful or unlawful, construction
should be in favor of its lawfulness."[47]
In an attempt to shift the "blame" on HDMF for not properly verifying
the borrowers/buyers submitted by GA, it has been contended that upon the
execution of the MOA, GA was already relieved of its warranties: (a) on the
proper evaluation and approval of loans of the borrowers/buyers; and (b)
against misrepresentation of its agents/employees for loan accounts evaluated
and approved by GA.
However, this contention is untenable, considering the inescapable fact
that at the time of the execution of the MOA on July 13, 2009, GA
had already executed around nine (9) different FCAs with HDMF, with the latter
having released funds amounting to more or less P2.9 Billion for the purpose.
As such, the crime of estafa was,
in all reasonable likelihood, already consummated even before the
execution of the MOA.
Furthermore, even assuming arguendo that the provisions of the
MOA indeed superseded GA's aforesaid warranties and that the obligation to
evaluate and approve the loan applications of the borrowers/buyers of the
Xevera Project was already with HDMF, GA remains bound to undertake corrective
measures to address any defects regarding the membership and housing loan
eligibility of its buyers:
In cases where defects
in HDMF membership and housing loan eligibility of the buyer are found, the
DEVELOPER shall undertake the following corrective measures to address the
same:
|
1) |
Require the borrower to complete the required number of
contributions, in case the required 24 monthly contributions is not met; |
|
2) |
Require the borrower to update membership contributions,
in case the membership status is inactive; |
|
3) |
Require the borrower to update any existing Multi-Purpose
Loan (MPL) if [it] is in arrears or pay in full if the same has lapsed; |
|
4) |
Buyback the account in case the member has a HDMF housing
loan that is outstanding, cancelled, bought back, foreclosed or subject to [dacion
en pago].[48] |
Aside from these obligations, it goes without
saying that the GA is obliged to only provide and process the applications of
legitimate buyers. Verily, it would be nonsensical to suppose that HDMF would
release funds to GA had it known that the list of borrowers/buyers and the
accompanying documents submitted to it by the latter were fraudulent or
fictitious.
Moreover, the HDMF's failure to prevent the fraudulent maneuverings allegedly
employed by GA - whether through the negligence of its staff or otherwise -
does not negate the fact that fraud was committed against the former. The
scheme's discovery is already after the fact and hence, does not discount the
posterior commission of fraud. At any rate, it should be highlighted that HDMF,
is a government-owned and controlled corporation (GOCC)[49] and hence, an instrumentality of the State. Thus, the rule
that the State is not bound by the omission, mistake or error of its officials
or agents[50] applies.
As for the respondents' respective roles in the fraudulent scheme establishing
the existence of probable cause against them, I fully agree with - and thus,
need not repeat - the ponencia's findings. In light of the
foregoing, it is my submission that there is probable cause to believe that all
respondents, i.e., Delfin Lee, Dexter Lee, Sagun, Salagan, and
Alvarez, conspired and confederated with one another in order to commit the
fraudulent acts against HDMF. In this regard, jurisprudence instructs that
"in determining whether conspiracy exists, it is not sufficient that the
attack be joint and simultaneous for simultaneousness does not of itself
demonstrate the concurrence of will or unity of action and purpose which are
the bases of the responsibility of the assailants. What is determinative is
proof establishing that the accused were animated by one and the same
purpose."[51]
That it was GA and HDMF - both corporate entities - which dealt with each
other, and not respondents in their personal capacities, does not eliminate the
latter's criminal liabilities in this case, if so established after trial.
Jurisprudence provides that "if the violation or offense is
committed by a corporation, partnership, association or other juridical
entities, the penalty shall be imposed upon the directors, officers, employees
or other officials or persons responsible for the offense. The penalty
referred to is imprisonment, the duration of which would depend on the amount
of the fraud as provided for in Article 315 of the [RPC]. The reason for this
is obvious: corporation, partnership, association or other juridical entities
cannot be put in jail. However, it is these entities which are made liable for
the civil liabilities arising from the criminal offense. This is the import of
the clause 'without prejudice to the civil liabilities arising from the
criminal offense.'"[52]
Also, it deserves pointing out that while respondents do not deny the existence
of fictitious/non-existent buyers and that loan documents were
falsified/simulated, they disclaim knowledge of the fraudulent scheme committed
against HDMF, as it was allegedly its rogue agents which actually defrauded GA.
Clearly, the foregoing constitutes denial and as such, is a matter of defense,
the merits of which are better threshed out during trial.[53]
Finally, it is important to elucidate that the RTC of Makati City, Branch 58's
(Makati-RTC) January 30, 2012 Resolution in Civil Case No. 10-1120 granting GA
and Delfin Lee's motion for summary judgment, and consequently, its complaint
for specific performance and damages against HDMF has no bearing, considering
its fundamental disparities with the present case. In particular, Civil Case
No. 10-1120 involves a cause of action arising from the contractual relations
of GAl Delfin Lee and HDMF, which is adjudged under the evidentiary threshold
of preponderance of evidence. On the contrary, this case (stemming from
Criminal Case No. 18480) only seeks to determine whether probable cause exists
to file a criminal case in court against the accused. The ruling in the former
cannot be thus binding on the latter. At any rate, the ruling in Civil Case No.
10-1120 was premised on the fact that the July 13, 2009 MOA supposedly
superseded, amended, and modified the provisions of the FCAs in that the power
to approve the housing applications had already been removed from GA and in
turn, was relegated to only loan counseling. Therefore, HDMF cannot renege on
the performance of their contract on the ground that the defaulting buyers were
fictitious and spunous.
As previously stated, the MOA was executed on July 13, 2009, and at that time,
GA had already executed around nine (9) different FCAs with HDMF, with the
latter having released funds amounting to more or less P2.9 Billion for the
purpose.[54] Thus, even prior to the said amendment,
the commission of fraud and the resulting damage to HDMF had, in all reasonable
likelihood, already existed, which, in turn, means that the crime of estafa had
already been probably consummated. The probable consummation of the crime is
not erased by the succeeding partial novation[55] of the contract between the parties. Case law dictates that
criminal liability for estafa is
not affected by compromise or novation of contract, for it is a public offense
which must be prosecuted and punished by the Government on its own motion even
though complete reparation should have been made of the damage suffered by the
offended party.[56] A criminal offense is committed against
the People and the offended party may not waive or extinguish the criminal
liability that the law imposes for the commission of the offense.[57]
In light of the foregoing, the first element of syndicated estafa has been shown to be present.
Correlatively, as the estafa was
allegedly committed by at least five (5) individuals, there exists a
"syndicate" within the purview of PD 1689, and thus, the second
element of syndicated estafa is
likewise present. However, the third and last element of syndicated estafa, as
discussed by the ponencia,[58] is not present in
this case.
As earlier stated, the third element of syndicated estafa is that the defraudation
results in the misappropriation of moneys contributed by stockholders, or
members of rural banks, cooperative, "samahang nayon(s)," or
farmers' association, or of funds solicited by corporations/associations
from the general public. Essentially, the wide-scale defraudation of
the public through the use of corporations/associations is the gravamen of
syndicated estafa.
This is clearly inferred from the "Whereas Clauses" of PD 1689 which
read:
WHEREAS, there is an upsurge in the commission
of swindling and other forms of frauds in rural banks, cooperatives, "samahang
nayon(s)", and farmers' associations or
corporations/associations operating on funds solicited from the
general public;
WHEREAS, such defraudation or misappropriation of funds contributed by
stockholders or members of such rural banks, cooperatives, "samahang
nayon(s)", and farmers' [association], or of funds
solicited by corporations/associations from the general public, erodes
the confidence of the public in the banking and cooperative system, contravenes
the public interest, and constitutes economic sabotage that threatens the
stability of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at
least minimized, by imposing capital punishment on certain forms of swindling
and other frauds involving rural banks, cooperatives, "samahang
nayon(s)", and farmers' [association] or corporations/associations
operating on funds solicited from the general public[.][59]
After a careful study of this case, I find the
third element to be lacking. Based on the allegations of the complaint, it is
apparent that the thrust thereof is respondents' purported defraudation of HDMF
which induced it to release funds. This is not a criminal case filed by members
of the general public, such as buyers of the Xevera Project, claiming that
rural banks, cooperatives, "samahang nayon(s)," and farmers'
association or corporations/associations solicited funds from them, but later
on resulted into them being defrauded. To be sure, the fact that the funds
released by HDMF are in the nature of public funds does not mean that
syndicated estafa was
committed. The operative factor is whether or not the fraud was committed against
the general public. On this point, the case of Galvez v. CA[60] illumines, among others, that PD 1689 does not apply when,
regardless of the number of the accused, (a) the entity soliciting funds
from the general public is the victim and not the means through which the estafa is
committed, or (b) the offenders are not owners or employees who used the
association to perpetrate the crime, in which case, Article 315 (2) (a) of the
Revised Penal Code applies:
In sum and substance and by precedential guidelines,
we hold that, first, Presidential Decree No. 1689 also covers
commercial banks; second, to be within the ambit of the Decree, the
swindling must be committed through the association, the bank in this case,
which operate on funds solicited from the general public; third,
when the number of the accused are five or more, the crime is syndicated estafa under
paragraph 1 of the Decree; fourth, if the number of accused is less
than five but the defining element of the crime under the Decree is present,
the second paragraph of the Decree applies; x x x fifth,
the Decree does not apply regardless of the number of the accused, when, (a)
the entity soliciting funds from the general public is the victim and not the
means through which the estafa is
committed, or (b) the offenders are not owners or employees who used the
association to perpetrate the crime, in which case, Article 315 (2) (a) of the
Revised Penal Code applies.[61]
In so far as this case is concerned, it is
undoubted that the private complainant is HDMF; not the general public who
claim to have been defrauded through the use of any juridical entity.
Therefore, respondents cannot be indicted for syndicated estafa. Instead, they can be indicted only
for simple estafa under
Article 315 (2) (a) of the RPC for the reasons above explained.
Although the Information filed before the RTC and the consequent warrants of
arrest issued against respondents were for the crime of syndicated estafa, and not
for simple estafa,
the case of Spouses Hao v. People[62] teaches that said issuances remain valid but
a formal amendment of the Information should be made:
With our conclusion that probable cause existed
for the crime of simple estafa and that the petitioners have probably committed
it, it follows that the issuance of the warrants of arrest against
the petitioners remains to be valid and proper. To allow them to go
scot-free would defeat rather than promote the purpose of a warrant of arrest,
which is to put the accused in the court's custody to avoid his flight from the
clutches of justice.
Moreover, we note that simple estafa and syndicated estafa are
not two entirely different crimes. Simple estafa is a crime necessarily
included in syndicated estafa.
An offense is necessarily included in another offense when the essential
ingredients of the former constitute or form a part of those constituting the
latter.
Under this legal situation, only a formal amendment of the filed
information under Section 14, Rule 110 of the Rules of Court is necessary; the
warrants of arrest issued against the petitioners should not be nullified since
probable cause exists for simple estafa.[63] (Emphases and underscoring supplied)
Accordingly, it is my
position that respondents should instead be indicted for simple estafa only.
For this purpose, the DOJ should be directed to amend the Information so as to
charge respondents accordingly. Meanwhile, the warrants of arrest issued
against them must stand.
II.G.R. No. 209424.
The petition in G.R. No. 209424[64] was filed by HDMF
against GA, Delfin Lee, and respondent Tessie G. Wang (Wang; a purported
fully-paid buyer of 22 houses and lots in GA's Xevera Project)[65] assailing the CA's ruling[66] in CA-G.R. SP No.
128262. In the said case, the CA upheld the Makati-RTC's January 30, 2012
Resolution[67] in Civil Case No. 10-1120 granting the
motion for summary judgment filed by GA, et al. and thereby,
ordered HDMF to comply with its obligations under the MOA, FCAs, and Collection
Servicing Agreements. Dissatisfied, HDMF filed a motion for reconsideration,[68] which was, however, denied by the Makati-RTC in a December
11, 2012 Resolution[69] on the ground that the same was filed by
HDMF's engaged private counsel, Yorac Arroyo Chua Caedo & Coronel Law Firm
(Yorac Law), without, however, the requisite approval of the Office of the
Government Corporate Counsel (OGCC) and the Commission on Audit
(COA); hence, the RTC treated the motion as a mere scrap of paper which did not
toll the running of the period of appeal.[70] Consequently, HDMF
filed a petition for certiorari[71] before the CA,
which was dismissed mainly on the following grounds: (a) the certiorari petition
is not the proper remedy, considering that the Makati-RTC's ruling was in the
nature of a final judgment and hence, subject to an ordinary appeal under Rule
41 of the Rules of Court;[72] and (b) the Makati-RTC did not
gravely abuse its discretion in dismissing HDMF's motion for reconsideration as
it failed to comply with the rules, among others, the requisite authorization
from the OGCC and the COA.[73]
In ruling for the grant of G.R. No. 209424, the ponencia prefatorily
held that the Resolution[74] dated January 30, 2012 of the Makati-RTC
which granted summary judgment in GA, et al.'s favor is, strictly
speaking, only a partial summary judgment rendered in the context of Section 4,
Rule 35[75] of the Rules of Court. It then explained
that such Resolution only resolved the issue of whether or not GA, et
al. were entitled to specific performance, and explicitly stated that the
issue on the proper amount of damages to be awarded to them shall still be
subject to a presentation of evidence. Since there is still a matter to be
resolved by the Makati-RTC, such Resolution partakes of the nature of an
interlocutory order. As such, HDMF correctly availed of the remedy of filing a
petition for certiorari before the CA.[76]
The ponencia further found that Yorac Law Firm failed to
sufficiently prove that it had the authority to represent HDMF in the
proceedings before the Makati-RTC. In this regard, it pointed out that since
HDMF is a GOCC, it may only engage private counsels with the written conformity
of the Solicitor General or the Government Corporate Counsel and the written
concurrence of the COA. Unfortunately, however, Yorac Law Firm was only able to
provide a Certification[77] dated January 10, 2013 signed by the
Office of the Supervising Auditor, COA Corporate Auditor Atty. Fidela M. Tan
(Atty. Tan), stating that the COA purportedly authorized HDMF to engage Yorac
Law Firm as private counsel. According to the ponencia, this cannot
be given evidentiary weight not only because it is merely an attestation that
the COA supposedly concurred in the HDMF's retainer agreement with Yorac Law
Firm, but also because it failed to comply with Sections 24 and 25, Rule 132[78] of the Rules of Court.[79]
Finally, the ponencia recognized that since Yorac Law Firm was
not authorized to appear on behalf of HDMF before the Makati-RTC proceedings,
the motion for reconsideration it filed before such court did not toll the
reglementary period for the filing of a petition for certiorari before
the CA. Ordinarily, such petition filed by HDMF before the CA should be
dismissed for being filed out of time. However, the ponencia held
that in the broader interest of justice, as well as the peculiar legal and
equitable circumstances in this case, the petition for certiorari before
the CA should not be dismissed outright due to strict adherence to technical
rules of procedure, but must be resolved on its merits. Hence, the ponencia ordered
the remand of the case to the CA for the determination of the propriety of the
Makati-RTC's issuance of a partial summary judgment.[80]
While I concur with the ponencia insofar as it found that HDMF
correctly availed of the remedy of certiorari before the CA, I
respectfully disagree with its ruling that Yorac Law Firm had no authority to
act as counsel on HDMF's behalf, and that the Makati-RTC must be directed to
conduct further proceedings in Civil Case No. 10-1120 with dispatch so that the
aggrieved party may appeal the Makati-RTC's issuance of a partial summary
judgment in said case.
The general rule is that GOCCs, such as HDMF, are enjoined to refrain from
hiring private lawyers or law firms to handle their cases and legal matters.
However, in exceptional cases, the written conformity and acquiescence of the
Solicitor General or the Government Corporate Counsel, as the case may be, and
the written concurrence of the COA shall first be secured before the hiring or
employment of a private lawyer or law firm.[81]
In this case, these written authorizations were complied with by HDMF. Records
show that Atty. Tan issued a Certification[82] that the COA
concurred in the engagement by HDMF of Yorac Law Firm as its private counsel.[83] The said certification is presumed to have been issued by
the said officer in the regular performance of her duties and hence, should be
deemed valid, absent any showing to the contrary. Besides, as pointed out by
one of the dissenting justices before the CA, if the Makati-RTC was uncertain
about the authority of private counsel to represent HDMF, "fairness and
prudence dictate that the [same] be given a chance to provide the form of proof
acceptable to the RTC,"[84] especially
considering the public interest involved in this case. To note, records show
that the only party who objected to Yorac Law Firm's representation of HDMF was
respondent Wang, who filed a motion to expunge[85] on the sole ground of lack of COA conformity. This motion
was never resolved by the Makati-RTC,[86] hence, leaving
HDMF in the dark on the merits of the motion to expunge and on the necessity to
submit further proof of the COA's authorization. Meanwhile, anent the approval
of the OGCC, records disclose that the same was procured through the letters
dated December 28, 2010[87] and December 5, 2011[88] signed by Government Corporate Counsel Raoul C. Creencia.[89] In fine, it was grave error for the Makati-RTC to deny the
HDMF's motion for reconsideration.
In light of the foregoing submissions and under ordinary circumstances, court
procedure dictates that the case be remanded for a resolution on the merits.
However, when there is already enough basis on which a proper evaluation of the
merits may be had - as in this case, considering the copies of various
pleadings and documents already in the possession of the Court the Court may
dispense with the time-consuming procedure of remand in order to prevent
further delays in the disposition of the case and to better serve the ends of
justice.[90] Thus, I hereby submit that the Court may
already resolve the issue of the propriety of the Makati-RTC 's issuance of a
partial summary judgment in this case.
Jurisprudence is clear that "[s]ummary judgment is not warranted when
there are genuine issues which call for a full blown trial. The party who moves
for summary judgment has the burden of demonstrating clearly the absence of any
genuine issue of fact, or that the issue posed in the complaint is patently
unsubstantial so as not to constitute a genuine issue for trial. Trial courts
have limited authority to render summary judgments and may do so only when
there is clearly no genuine issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested, proceedings for summary
judgment cannot take the place of trial."[91]
A perusal of the pleadings filed by the parties in Civil Case No. 10-1120 would
show that genuine issues of fact were raised,[92] and thus, negated the remedy of summary judgment. As
encapsulated in the dissent before the CA, these genuine issues are: (a)
whether GA was limited to conduct loan counseling instead of loan approval
under the agreements; (b) whether GA, in fact, conducted loan approvals
instead of mere loan counseling; (c) whether HDMF may buyback accounts
despite the absence of a notice to buyback from HDMF; (d) whether HDMF
refused to release collectibles under the agreements; (e) whether GA is
guilty of fraud; (f) whether HDMF had factual basis to cancel the CSAs
and FCAs; and (g) whether GA's acts were constitutive of breach of its
warranties under the agreements.[93] Clearly,
the Makati-RTC could not turn a blind eye on these triable material factual
issues by the mere expedient of saving that the Julv 13, 2009 MOA superseded
the provisions of the FCAs and thus, relegated GA's authoritv to mere loan
counseling, and therefore, rendered it unaccountable (or the defaulting buyers,
who turned out to be fictitious and spurious. Surely, the
alleged shift of GA's authority to mere loan counseling - assuming the same to
be true still does not definitively settle the foregoing issues and hence,
cannot be the sole consideration to grant GA, et al.'s complaint
for specific performance.[94] As such, the Makati-RTC's rulings were
evidently tainted with grave abuse of discretion, and hence, correctly assailed
by HDMF through a petition for certiorari.
For these reasons, it is my view that since it is already apparent from the
records that the Makati-RTC erroneously rendered a partial summary judgment, it
is but proper to order a remand of the case to the same court for the conduct
of trial on the merits.
III. G.R. Nos. 208744 and 210095.
To recount, the petition in G.R. No. 208744[95] was filed by the DOJ against Delfin Lee to assail the CA's
July 8, 2013[96] and August 14, 2013[97] Resolutions in CA-G.R. SP No. 130404 which essentially
disallowed the DOJ's petition for certiorari for being filed
out of time. In this case, the DOJ sought to nullify the Order[98] dated April 10, 2013 of the Regional Trial Court of Pasig
City, Branch 167 (Pasig-RTC) in Civil Case No. 73115 enjoining the DOJ's
preliminary investigation in the criminal cases entitled "National
Bureau of Investigation/Evelyn B. Niebres, et al. v. Globe Asiatique Realty
Corp./Delfin S. Lee, et al." (NPS Docket No. XVI-INV-10L-00363;
Niebres Complaint), "National Bureau of Investigation/Jennifer Gloria
(Gloria), et al. v. Globe Asiatique Realty Corp./Delfin S. Lee, et al. (NPS
Docket No. XVI-INV-11B-00063), and National Bureau of
Investigation/Maria Fatima Kayona (Kayona), et al. v. Globe Asiatique Realty
Corp./Delfin S. Lee, et al." (NPS Docket No. XVI-INV-11C-00138) for
syndicated estafa.[99]
On the other hand, the petition in G.R. No. 210095[100] was filed by the DOJ also against Delfin Lee to assail the
CA's June 26, 2013[101] and November 11, 2013[102] Resolutions in CA-G.R. SP No. 130409 which likewise
dismissed the DOJ's petition for certiorari for being filed
out of time. The petition docketed as CA-G.R. SP No. 130409 is the same
petition as that in CA-G.R. SP No. 130404, which was its initial docket number.
The problem arose when the petition in CA-G.R. SP No. 130404 was filed by the
DOJ without indicating the proper docket number by inadvertence. This prompted
the CA to assign a new docket number to the petition, i.e., CA-G.R.
SP No. 130409, and the raffling thereof to another ponente and
division.[103] Eventually, the petition was dismissed
outright for having been filed out of time.[104]
Verily, I agree with the ponencia's holding in G.R. Nos.
208744 and 210095, considering that it is clear that the
DOJ never intended to flout the rules nor employ any dilatory or underhanded
tactic as its failure to state the initial docket number to its certiorari petition
was by sheer inadvertence. As such, the CA should have relaxed the rules and
allowed the filing of said petition, following case law which states that
"[l]apses in the literal observance of a rule of procedure will be
overlooked when they arose from an honest mistake, [and] when they have not
prejudiced the adverse party."[105]
More importantly, the Pasig-RTC gravely abused its discretion in enjoining[106] the preliminary investigation of the aforesaid criminal
cases mainly on the basis of Makati-RTC's ruling in Civil Case No. 10-1120 -
which, as already adverted to, should be subject to re-evaluation. Clearly, the
Pasig-RTC's reliance on such basis is misplaced because such civil case
involves a cause of action arising from the contractual relations of GA/Delfin
Lee and HDMF; whereas the preliminary investigation proceedings in the
aforementioned criminal cases seek to determine whether probable cause exists
to file criminal cases in court against the accused, this time based on the
alleged double sales fraudulently perpetrated against the home-buyers/private
complainants Niebres, Gloria, and Kayona, et al. Given the
unmistakable variance in issues, and considering too that the evidentiary
thresholds applied in civil cases are different from criminal cases, the ruling
in the former would not be binding on the latter.
Thus, for these reasons, I agree with the ponencia's ruling that
the April 10, 2013 writ of preliminary injunction of the Pasig-RTC should be
lifted and quashed. The conduct of preliminary investigation in the three other
(3) criminal complaints against Delfin Lee, among others, docketed as NPS
Docket No. XVI-INV-10L-00363, NPS Docket No. XVI-INV-11B-00063, and NPS Docket
No. XVI-INV-11C-00138 for syndicated estafa should not have been enjoined.
As such, the rulings of the Pasig-RTC and the CA regarding this matter should
be rectified.
CONCLUSION
In conclusion, I hereby vote as follows:
[1] Rollo (G.R. No. 205698), Vol. I, pp. 111-198.
[2] Rollo (G.R. No. 205780), Vol.
I, pp. 8-82.
[3] See CA Decision dated October 5, 2012 and
CA Resolution dated February 11, 2013, both penned by Associate Justice
Angelita A. Gacutan with Associate Justices Mariflor Punzalan Castillo and
Francisco P. Acosta concurring. Rollo (G.R. No. 205698), Vol.
I, pp. 24-57 and 59-74.
[4] Id. at 405-451. Penned by OIC, Senior
Deputy State Prosecutor Theodore M. Villanueva and approved by Prosecutor
General Claro A. Arellano.
[5] Rollo (G.R. No. 209446), Vol.
I, pp. 42-148.
[6] Rollo (G.R. No. 209489), Vol.
I, pp. 36-150.
[7] Rollo (G.R. No. 209446), Vol.
I, pp. 153-173. Penned by Associate Justice Edwin D. Sorongon with Associate
Justices Hakim S. Abdulwahid and Marlene Gonzales-Sison concurring.
[8] Id. at 237-255. Penned by Judge Maria
Amifaith S. Fider-Reyes.
[9] This resolves the motion for
reconsideration of Alvarez only. Id. at 256-260.
[10] Rollo (G.R. No. 209852), Vol.
I, pp. 45-135.
[11] Rollo (G.R. No. 210143), Vol.
I, pp. 49-161.
[12] See CA Decision dated November 7, 2013
penned by Associate Justice Franchito N. Diamante with Associate Justices Agnes
Reyes Carpio and Melchor Q. C. Sadang concurring. Rollo (G.R.
No. 209852), Vol. I, pp. 192-220.
[13] Id. at 254-272.
[14] This resolves the motions of Delfin Lee
and Dexter Lee. Id. at 273-285.
[15] Rollo (G.R. No. 228452), Vol.
I, pp. 3-120.
[16] Rollo (G.R. No. 228730), Vol.
I, pp. 36-148.
[17] See CA Decision dated November 16, 2016
penned by Associate Justice Ramon Paul L. Hernando with Associate Justices Jose
C. Reyes, Jr. and Stephen C. Cruz concurring. Rollo (G.R. No.
228452), Vol. I, pp. 144-164.
[18] Id. at 209-227 and 228-240.
[19] Rollo (G.R. No. 230680) Vol.
I, pp. 3-92.
[20] Id. at 343-369. Penned by Associate
Justice Ramon A. Cruz with Associate Justices Rodil V. Zalameda and Henri Jean
Paul B. Inting concurring.
[21] Id. at 370-372.
[22] Id. at 114-132.
[23] See id. at 22.
[24] The Complaint-Affidavit dated October 29,
2010 was filed by the Officer-in-Charge of HDMF, Emma Linda B. Farria; rollo (G.R.
No. 205698), Vol. I, pp. 339-350.
[25] Entitled "INCREASING THE PENALTY FOR
CERTAIN FORMS OF SWINDLING OR ESTAFA" (April 6, 1980).
[26] See preliminary investigation report dated
October 29, 2010; rollo (G.R. No. 205698), Vol. I, pp.
330-338.
[27] See report dated December 10, 2010; id. at
400-404.
[28] See rollo (G.R. No.
205698), Vol. II, p. 613.
[29] See id.
[30] See id. at 614.
[31] Rollo (G.R. No. 205698), Vol.
I, p. 407.
[32] Id. at 428.
[33] Id. at 405-451.
[34] See id. at 414.
[35] Dated July 13, 2009. Rollo (G.R.
No. 205698), Vol. IV, pp. 2055-2060.
[36] See rollo (G.R. No.
205698), Vol. I, pp. 436-441.
[37] Dated August 25, 2011. Rollo (G.R.
No. 205698), Vol. II, pp. 612-616.
[38] Docketed as Criminal Case No. 18480.
[39] Rollo (G.R. No. 209466), Vol.
I, pp. 237-255.
[40] See ponencia, pp. 43-44.
[41] See id. at 36-40.
[42] The procedural flaws in the petitions
filed by Sagun, Delfin Lee, Dexter Lee, and Alvarez in G.R. Nos. 205698,
205780, 209446, 209489, 209852, 210143, 228452, 228730, and 230680 have been
adequately addressed by Senior Associate Justice Antonio T. Carpio in his
Dissenting Opinion (see pp. 14-23), which discussion I fully subscribe to.
[43] People v. Tibayan, 750 Phil. 910,
919 (2015), citing People v. Chua, 695 Phil. 16, 32 (2012).
[44] Id. at 269, citing Galvez v. CA,
704 Phil. 463, 472 (2013).
[45] Galvez v. CA, id. at 470; citation
omitted.
[46] Entitled "AN ACT FURTHER
STRENGTHENING THE HOME DEVELOPMENT MUTUAL FUND, AND FOR OTHER PURPOSES,"
approved on July 21, 2009.
[47] Bustillo v. People, 634 Phil. 547,
556 (2010).
[48] See Section 3 (c) of the July 13, 2009
MOA; rollo (G.R. No. 205698), Vol. IV, p. 2057.
[49] See RA 9679.
[50] China Banking Corp. v. Commission of
Internal Revenue, G.R. No. 172509, February 4, 2015, 749 SCRA 525, 539.
[51] People v. Gerero, G.R. No. 213601,
July 27, 2016, 798 SCRA 702, 707, citing Quidet v. People, 632
Phil. 1, 11-12 (2010).
[52] Ong v. CA, 449 Phil. 691, 710
(2003); emphasis and underscoring supplied.
[53] See Shu v. Dee, 734 Phil. 204,
216-217 (2014).
[54] See rollo (G.R. No.
205698), Vol. I, p. 414.
[55] "[T]he effect of novation may be
partial or total. There is partial novation when there is only a modification
or change in some principal conditions of the obligation. It is total, when the
obligation is completely extinguished." (Ong v. Bogñalbal, 533 Phil.
139, 156 [2006]).
[56] See Metropolitan Bank and Trust
Company v. Reynando, 641 Phil. 208, 220 (2010).
[57] People v. Gervacio, 102 Phil. 687,
688 (1957).
[58] See ponencia, pp. 36-39.
[59] Emphases and underscoring supplied.
[60] See supra note 44.
[61] Id. at 474-475; citations omitted,
emphasis and underscoring supplied.
[62] 743 Phil. 204 (2014).
[63] Id. at 219-220; citations omitted.
[64] Rollo (G.R. No. 209424), Vol.
I, pp. 143-283.
[65] See id. at 299.
[66] See Decision dated October 7, 2013, penned
by Associate Justice Stephen C. Cruz (id. at 14-34). Associate Justices Elihu
A. Ybañez and Danton Q. Bueser issued their respective Separate Concurring
Opinions (id. at 37-40 and 35-36); while Associate Justices Magdangal M. De
Leon and Myra V. Garcia-Fernandez issued separate Dissenting Opinions (id. at
41-63 and 64-68).
[67] Rollo (G.R. No. 209424), Vol.
II, pp. 433-452. Rollo (G.R. No. 209852), Vol. I, pp. 296-315.
Penned by Presiding Judge Eugene C. Paras.
[68] Dated February 24, 2012. Rollo (G.R.
No. 209424), Vol. III, pp. 1264-1296.
[69] Rollo (G.R. No. 209424), Vol.
II, pp. 453-459.
[70] See id. at 455-457.
[71] Dated January 14, 2013. Rollo (G.R.
No. 209424), Vol. I, pp. 347-431.
[72] See id. at 306-308 and 311.
[73] See id. at 310.
[74] Rollo (G.R. No. 209424), Vol.
II, pp. 433-452. Rollo (G.R. No. 209852), Vol. I, pp. 296-315.
Penned by Presiding Judge Eugene C. Paras.
[75] Section 4, Rule 35 of the Rules of Court
reads:
Section 4. Case not fully adjudicated on
motion. - If on motion under this Rule, judgment is not rendered upon the
whole case or for all the reliefs sought and a trial is necessary, the court at
the hearing of the motion, by examining the pleadings and the evidence before
it and by interrogating counsel shall ascertain what material facts exist
without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts
accordingly.
[76] See ponencia, pp. 23-27.
[77] Rollo (G.R. No. 209424), Vol.
IV., p. 1493.
[78] Sections 24 and 25, Rule 132 of the Rules
of Court read:
Section 24. Proof of official record. -
The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which
the record is kept is in foreign country, the certificate may be made by a
secretary of the embassy or legation, consul-general, consul, vice-consul, or
consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated
by the seal of his office.
Section 25. What attestation of copy must state. - Whenever a
copy of a document or record is attested for the purpose of the evidence, the
attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must
be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court.
[79] See ponencia, pp. 28-31.
[80] See id. at 31-32 and 49.
[81] See PHIVIDEC Industrial Authority
v. Capitol Steel Corporation, 460 Phil. 493, 503 (2003), citing Memorandum
Circular No. 9 dated August 27, 1998.
[82] Rollo (G.R. No. 209424), Vol.
IV, p. 1493.
[83] Pertinent portions of the January 10, 2013
Certification read:
This is to certify that the Commission on Audit
(COA), has concurred in the Retainer Agreement entered into by and between the
Home Development Mutual Fund (HDMF) and Yorac, Arroyo, Chua, Caedo &
Coronel Law Firm, for the latter to provide legal services to the HDMF in
connection the cases filed by or against Globe Asiatique Realty Holdings
Corporation, Mr. Delfin S. Lee, its officers, employees and agents and such
other cases that arose out of or in relation to the Globe Asiatique Realty
Holdings Corporation issues.
This certification is issued to attest to the truth of the foregoing and for
whatever legal purposes it may serve. (Id.)
[84] Rollo (G.R. No. 209424), Vol. I, p. 51.
[85] Dated December 9, 2011. Rollo (G.R.
No. 209424), Vol. III, pp. 1214-1224.
[86] Rollo (G.R. No. 209424), Vol.
I, p. 206.
[87] Rollo (G.R. No. 209424), Vol.
III, pp. 1494-1495.
[88] Id. at 1496-1497.
[89] See id at 1494 and 1496. Pertinent
portions of the December 28, 2010 and December 5, 2011 letters read:
December 28, 2010 letter
This refers to your request for authority to engage the services of external
counsel who will handle the cases filed by or against the Globe Asiatique
Holdings Corp.
In view thereof, and pursuant to Office of the Government Corporate Counsel
(OGCC) Memorandum Circular I, Series of2002 in conjunction with Republic Act
3838 and Memorandum Circular 9 dated August 29, 1998, Home Development Mutual
Fund (HDMF) is hereby authorized to engage the services of x x x Yorac Arroyo
Chua Caedo & Coronel Law Firm to handle the aforesaid cases, subject to the
control and supervision of the OGCC.
December 5, 2011 letter
This confirms and ratifies the engagement of external counsel for the handling
of the cases filed by or against the Globe Asiatique Holding Corporation, and
such other cases that arose out of or in relation to the Globe Asiatique
Corporation Issues.
In view thereof, and pursuant to the Office's Memorandum Circular I, Series of
2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated 29
August 1998, we confirm and ratify the engagement of Yorac Arroyo Chua Caedo
& Coronel Law Firm to handle such cases and the submissions of the law firm
in connection therewith, subject to the control and supervision of the OGCC.
[90] See Jolo's Kiddie
Cars/Fun4Kids/Marlo U. Cabili v. Caballa, G.R. No. 230682, November 29,
2017, citing Sy-Vargas v. The Estate of Rolando Ogsos, Sr., G.R.
No. 221062, October 5, 2016, 805 SCRA 438, 448.
[91] Nocom v. Camerino, 598 Phil. 214,
233-234 (2009).
[92] See rollo (G.R. No.
209424), Vol. I, pp. 56-59.
[93] See Dissenting Opinion of CA Justice
Magdangal M. De Leon; id. at 59.
[94] Dated November 13, 2010. Rollo (G.R.
No. 209424), Vol. II, pp. 753-774.
[95] Rollo (G.R. No. 208744). Vol.
I, pp. 28-87.
[96] See CA Minute Resolution issued by
Executive Clerk of Court III Caroline G. Ocampo-Peralta, MNSA; id. at 122.
[97] Id. at 118-121. Penned by Associate
Justice Francisco P. Acosta with Associate Justices Fernanda Lampas Peralta and
Angelita A. Gacutan concurring.
[98] Id. at 195-198. Penned by Judge Rolando G.
Mislang.
[99] See id. at 33.
[100] Rollo (G.R. No. 210095). Vol.
I, pp. 35-131.
[101] Id. at 136-137. Penned by Associate
Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Danton
Q. Bueser concurring.
[102] Id. at 139-142.
[103] See id. at 139-140.
[104] Id. at 137.
[105] Aguam v. CA, 388 Phil. 587, 595
(2000).
[106] While case law in Samson v.
Guingona (401 Phil. 167, 172 [2000]) provides that criminal cases may
be enjoined in the following instances: (1) when the injunction is necessary to
afford adequate protection to the constitutional rights of the accused; (2)
when it is necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; (3) when there is a prejudicial question
which is subjudice; (4) when the acts of the officer are without or
in excess of authority; (5) where the prosecution is under an invalid law,
ordinance or regulation; (6) when double jeopardy is clearly apparent; (7)
where the Court has no jurisdiction over the offense; (8) where it is a case of
persecution rather than prosecution; (9) where the charges are manifestly false
and motivated by the lust for vengeance; and (10) when there is clearly
no prima facie case against the accused and a motion to quash
on that ground has been denied; none of these are applicable in the instant
case.
DISSENTING OPINION
LEONEN, J.:
I join Senior Associate Justice Antonio T. Carpio in his dissent. I write
separately to contribute to a more exhaustive understanding of syndicated estafa as defined
by Presidential Decree No. 1689.
There was probable cause to file informations for syndicated estafa and to issue
corresponding warrants of arrest against Delfin S. Lee (Delfin), Dexter L. Lee
(Dexter), Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty. Alex
M. Alvarez (Atty. Alvarez). Hence, it was error for the Court of Appeals to set
aside the August 10, 2011 Review Resolution of the Department of Justice, to
annul and set aside the May 22, 2012 and August 22, 2012 Resolutions penned by
Judge Ma. Amifaith S. Fider-Reyes (Judge Fider-Reyes) of Branch 42, Regional
Trial Court, San Fernando City, Pampanga in Criminal Case No. 18480, and,
lastly, to lift, quash, and recall the warrants of arrest issued pursuant to
Judge Fider-Reyes' resolutions.
I
I take exception to the ponencia's emphasis on the number of
individuals who can be charged and how this number is supposedly determinative
of the offense committed by Delfin, Dexter, Sagun, and Salagan. The ponencia explains
how Atty. Alvarez should supposedly be excluded from the charge of estafa,[1] as "his act of notarizing various documents, . . . that
were material for the processing and approval of the transactions, was
insufficient to establish his having been part of the conspiracy."[2] The ponencia notes that with Atty.
Alvarez's exclusion, only four (4) individuals remain to be charged. It
maintains that a case for syndicated estafa may not be prosecuted considering
that those who remain could not be considered as a syndicate.[3]
Articles 315 and 316 of the Revised Penal Code penalize estafa and other forms of swindling,
respectively.[4] Presidential Decree No. 1689 deals with
heavier penalties when the acts penalized by Articles 315 and 316 are
"committed by a syndicate":
Section 1. Any person or persons who shall
commit estafa or
other forms of swindling as defined in Article 315 and 316 of the Revised Penal
Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa) is
committed by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme, and the defraudation results in the misappropriation of money
contributed by stockholders, or members of rural banks, cooperative,
"samahang nayon(s)", or farmers' association, or of funds solicited
by corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds
100,000 pesos.[5]
Thus, syndicated estafa exists if the following elements
are present:
1) [E]stafa or other forms of swindling as
defined in Articles 315 and 316 of the [Revised Penal Code] was committed; 2)
the estafa or
swindling was committed by a syndicate of five or more persons; and 3) the
fraud resulted in the misappropriation of moneys contributed by stockholders,
or members of rural banks, cooperatives, "samahang nayon[s]," or
farmers associations or of funds solicited by corporations/associations from
the general public.[6]
The recital of elements
demonstrates that two (2) additional elements qualify swindling into
syndicated estafa.
The first is "commi[ssion] by a syndicate." The second is
misappropriation. The object of this misappropriation, in turn, can be either
of two (2) categories of funds. The first category is "moneys contributed
by stockholders, or members of rural banks, cooperatives, 'samahang nayon(s)',
or farmers['] associations." The second category is "funds solicited
by corporations/associations from the general public."
Concerning the first additional element of "commi[ssion] by a
syndicate," Section 1 of Presidential Decree No. 1689 proceeds to identify
when a syndicate exists. There is a syndicate when there is a collective of
five (5) or more individuals, the intent of which is the "carrying out
[of] the unlawful or illegal act, transaction, enterprise or scheme."
While Section 1 specifies a minimum number of individuals acting out of a
common design to defraud so that a syndicate may be deemed to exist, it does
not specify the number of individuals who must be charged for syndicated estafa at any given
time. At no point does Section 1 require a minimum of five (5) individuals to
stand trial for syndicated estafa. Likewise, it does not state that, failing in any such
threshold, prosecution cannot prosper.
Indeed, contingencies may make it so that even if five (5) or more individuals
acted in concert to defraud, not everyone involved in the common scheme can
stand trial. While some may have been brought into custody, others may remain
at large. Some individuals who were part of the scheme may have predeceased the
institution of a criminal action. Likewise, some conspirators may remain
unidentified even when acts attributable to them have been pinpointed. Exigencies
such as these cannot frustrate prosecution under Presidential Decree No. 1689.
To hold otherwise would be to render Presidential Decree No. 1689 impotent.
Prosecution can then be conveniently undermined by a numerical lacuna that is
not the essence of an offense otherwise demonstrably committed.
What is critical is not the number of individuals actually available for or
identified to stand trial, but a showing that a deceit mentioned in Articles
315 and/or 316 of the Revised Penal Code was committed by five (5) or more
individuals acting in concert. For as long as this is shown, coupled with the
requisite misappropriation, prosecution and conviction can proceed.
The primary task of investigators and prosecutors, then, is to demonstrate the
fraudulent scheme employed by five (5) or more individuals. Once this is
established, it is their task to demonstrate how an individual accused took
part in effecting that scheme. When an individual's participation is
ascertained, he or she may be penalized for syndicated estafa independently of his or her
collaborators. Thus, an information may conceivably be brought against even
just a single individual for as long that information makes averments on the
scheme perpetrated by that person with at least four (4) other collaborators,
as well as the nature of that person's participation in the scheme.
It is also not essential that an accused be formally named or identified as an
affiliate such as by being a director, trustee, officer, stockholder, employee,
functionary, member, or associate of the corporation or association used as an
artifice for the fraudulent scheme. As with the inordinate fixation on the
number of individuals being prosecuted, insisting on such an affiliation can
also conveniently frustrate the ends of justice. A cabal of scammers can then
nominally exclude one (1) of their ilk from their organized vehicle and already
be beyond Presidential Decree No. 1689's reach, regardless of the excluded
collaborator's actual participation in their fraudulent designs.
Presidential Decree No. 1689 contemplates not only corporations but also
associations as avenues for misappropriation. Affiliation with corporations
whether as a director, trustee, officer, stockholder, or member is carefully
delineated by law. In contrast, associations and affiliations with them are
amorphous. Any number of individuals can organize themselves into a collective.
Their very act of coming together with an understanding to pursue a shared
purpose suffices to make them an association. A regulatory body's official
recognition of their juridical existence and their collective's competence to
act as its own person is irrelevant.
Presidential Decree No. 1689's similar treatment of associations with
corporations rebuffs the need for an accused's formally designated relationship
with the organization which was used to facilitate the fraudulent scheme. The
statutory inclusion of the term "association," which is without a
specific restrictive legal definition unlike the term "corporation,"
manifests the law's intent to make as inclusive as practicable its application.
It exhibits the law's intent to not otherwise be strangled by prohibitive
technicalities on organizational membership.
II
Senior Associate Justice Carpio's dissent details how Atty. Alvarez should not
be considered a mere notary public so detached from the fraudulent scheme that
is subject of these consolidated petitions. Indeed, it would be foolhardy to
discount the gravity of the offense committed by dwelling on Atty. Alvarez's
nominal lack of "relat[ion] to Globe Asiatique either by employment or by
ownership."[7]
The ponencia acknowledges that Atty. Alvarez was not
affiliated with Globe Asiatique Realty Holdings Corporation (Globe Asiatique)
as he was Home Development Mutual Fund's employee and not Globe Asiatique's
employee or stockholder. Specifically, he was the Manager of Home Development
Mutual Fund's Foreclosure Department.[8] As Senior
Associate Justice Carpio emphasizes, Atty. Alvarez's position at Home
Development Mutual Fund and his simultaneous "moonlighting as head of the
legal department of Globe Asiatique,"[9] at whose
headquarters he even held office, incriminates, rather than exonerates, him.
Evidently, with his continuing employment at Home Development Mutual Fund,
Atty. Alvarez could not be simultaneously employed by Globe Asiatique, let
alone be formally declared the head of its legal department. This anomaly
should not frustrate his liability alongside Delfin, Dexter, Sagun, and
Salagan. If at all, it should aggravate his liability because knowing fully
well that he was in no position to render services for Globe Asiatique, and
that doing so amounted to a conflict of interest, Atty. Alvarez went ahead and
did so anyway. His knowing notarization of documents concerning mortgages which
he may himself foreclose shows malicious intent. Worse, his services for Globe
Asiatique did not amount to innocuous, run of the mill tasks but were an
integral component of the overarching fraudulent scheme. In Senior Associate Justice
Carpio's words:
Any agreement between Globe Asiatique and HDMF
would not have materialized if it were not for Globe Asiatique's submission of
mortgage documents notarized by Atty. Alvarez. Atty. Alvarez's participation in
the entire scheme was a crucial and necessary step in Globe Asiatique's
inducement of HDMF to release the loan proceeds to Globe Asiatique.[10]
The ponencia's
emphasis on how Atty. Alvarez should be segregated from Delfin, Dexter, Sagun,
and Salagan is misplaced. His circumstances should not be used to reduce the
persons accused to a number short of the threshold maintained by the ponencia.
The absurdity of Atty. Alvarez's personal condition cannot conveniently deter
prosecution for syndicated estafa.
III
Granting that Atty. Alvarez cannot be held liable as an integral cog to the
uncovered fraudulent apparatus, his exclusion does not ipso facto negate
the existence of a syndicate of at least five (5) individuals who worked to
carry out an illegal scheme through which funds solicited from the general
public were misappropriated. Even Atty. Alvarez's hypothetical exclusion does
not negate syndicated estafa.
The fraudulent scheme uncovered in this case did not merely involve Delfin,
Dexter, Sagun, Salagan, and Atty. Alvarez. A defining feature of the scheme was
the use of "special buyers" who were induced by a fee to enlist for a
Home Development Mutual Fund membership and then to lend their names and
memberships to Globe Asiatique. It was Globe Asiatique's use of these spurious
members' names and memberships which enabled it to siphon funds from Home
Development Mutual Fund through fund releases by way of take-out of the special
buyers' supposed housing loans.[11]
Such an elaborate machination could not have been exclusively carried out by
four (4) individuals. The plot's basic design demanded the involvement of
persons other than Delfin and Dexter and high-level executives Sagun and
Salagan. At the lowest rungs of the mechanism to effect the plot to involve
special buyers were agents who recruited, paid, and induced each of the special
buyers to enlist for Home Development Mutual Fund membership, and to allow
their names and memberships to be used. At an intermediate level were officers
who oversaw the operational aspects of the scheme.
Apart from the plot's basic configuration, the sheer scale to which it appears
to have been effected also belies the exclusive involvement of four (4)
individuals. As the information subject of Criminal Case No. 18480 underscored,
"644 borrowers endorsed by [Globe Asiatique] are not genuine buyers of
Xevera [H]omes while 802 are nowhere to be found; 3 buyers are already
deceased; and 275 were not around during the visit, hence, establishing that
all of them are fictitious buyers."[12] The carrying out
of the scheme was simply too broad to have merely been the result of four (4)
persons' exclusive handiwork.
The fraudulent scheme where at least five (5) individuals collaborated is clear
to see. Atty. Alvarez's convenient dislocation from the ranks of Globe
Asiatique's employees is too far-fetched to be indulged. But even if he were to
be excluded, the operation of a fraudulent syndicate cannot be discounted. This
Court should not render itself blind and condone a miscarriage of justice
merely on account of a numerical artifice. Five (5) persons accused, minus one
(1) absurdly discharged, do not erase the elaborate stratagem by a syndicate
wherein Delfin, Dexter, Sagun, and Salagan are, thus far, the ones identified
to have been on top, but which also indispensably involved many others.
IV
I also cannot agree to the assertion that there could not be syndicated estafa because
"the association of respondents did not solicit funds from the general
public"[13] and that "it was . . . not Globe
Asiatique, that solicited funds from the public."[14]
The ponencia reasons that it was not Globe Asiatique but Home
Development Mutual Fund that solicited funds from the pub1ic.[15] It adds that "[t]he funds solicited by [Home
Development Mutual Fund] from the public were in the nature of their
contributions as members of [Home Development Mutual Fund], and had nothing to
do with their being a stockholder or member of Globe Asiatique."[16] Thus, "the funds supposedly misappropriated did not
belong to Globe Asiatique's stockholders or members, or to the general public,
but to [Home Development Mutual Fund]."[17]
The ponencia overemphasizes the technicality of Home
Development Mutual Fund's separate and distinct juridical personality at the
expense of a proper appreciation of the gravity of the offense involved.
Republic Act No. 9679, or the Home Development Mutual Fund Law of 2009,
emphasizes the "provident character" of the Home Development Mutual
Fund, thus:
Section 10. Provident Character. - The Fund
shall be private in character, owned wholly by the members, administered in
trust and applied exclusively for their benefit. All the personal and employer
contributions shall be fully credited to each member, accounted for
individually and transferable in case of change of employment. They shall earn
dividends as may be provided for in the implementing rules. The said amounts
shall constitute the provident fund of each member, to be paid to him, his
estate or beneficiaries upon termination of membership, or from which peripheral
benefits for the member may be drawn.
As a provident fund,
Home Development Mutual Fund relies on the required remittance of savings by
its members. Membership is either mandated or voluntary. Its mandated
membership consists of all private individuals covered by the Social Security
System, all public employees covered by the Government Service Insurance
System, uniformed personnel in the Armed Forces of the Philippines, the
Philippine National Police, the Bureau of Jail Management and Penology, the
Bureau of Fire Protection, and all Filipinos employed by foreign employers
regardless of their place of deployment.[18] Voluntary
membership is open to Filipinos aged 18 to 65.[19]
It is true that Home Development Mutual Fund has a personality distinct and
separate from its members and exercises competencies independently of them.
However, considering its provident character and its membership base, it is
incorrect to say that the misappropriated funds in this case are Home
Development Mutual Fund's alone and not the general public's. By Republic Act
No. 9679's express language and Home Development Mutual Fund's membership base,
that is, practically the same as the general public, it is erroneous to
insulate Globe Asiatique from the general public by hyperbolizing Home
Development Mutual Fund's role as an intervening layer between them.
In asserting that Glebe Asiatique neither solicited funds from the general
public nor committed misappropriation, the ponencia similarly
fails to account for how Globe Asiatique used and manipulated Home Development
Mutual Fund. While it is true that the funds collected, and eventually
misappropriated, from Home Development Mutual Fund members were in the nature
of their contributions which did not accrue to Globe Asiatique, the essence of
the fraudulent scheme was that Globe Asiatique used Home Development Mutual
Fund as a medium for its pilferage.
The fraudulent scheme could not have been effected had Globe Asiatique not been
enabled to act for and on behalf of Home Development Mutual Fund. The ponencia's
own recital of facts acknowledges that under the Funding Commitment Agreements,
Globe Asiatique pre-processed housing loans and even collected monthly
amortizations on the loans obtained by its buyers.[20] Under its special buyers scheme, it even enticed non-members
of Home Development Mutual Fund to avail of its membership.
Globe Asiatique's commission by Home Development Mutual Fund is precisely what
enabled its fraudulent scheme. The machination of Delfin and his compatriots
turned on Globe Asiatique's delegation to act for Home Development Mutual Fund.
The ponencia ignores this devious agency and insists on Home
Development Mutual Fund's distinct identity. As with its emphasis on the number
of individuals charged, it again places a primacy on technicality at the
expense of the essence of Presidential Decree No. 1689. Such disregard compels
me to differ from its conclusions on the existence of probable cause to indict
for syndicated estafa and
to issue corresponding warrants of arrest for Delfin S. Lee, Dexter L. Lee,
Christina Sagun, Cristina Sa1agan, and Atty. Alex M. Alvarez.
ACCORDINGLY, I vote to GRANT the petitions subject of G.R. Nos. 205698,
205780, 209446, 209489, 209852, 210143, 228452, and 228730.
The October 5, 2012 Decision and February 11, 2013 Resolution of the Court of
Appeals in CA-G.R. SP No. 121346, the October 3, 2013 Decision of the Court of
Appeals in CA-G.R. SP No. 127690, the November 7, 2013 Decision of the Court of
Appeals in CA-G.R. SP No. 127553, and the November 16, 2016 Decision of the
Court of Appeals in CA-G.R. SP No. 127554 must be REVERSED.
The warrants of arrest issued by Branch 42, Regional Trial Court, San Fernando
City, Pampanga against Christina Sagun, Delfin S. Lee, Dexter L. Lee, and Atty.
Alex Alvarez must be REINSTATED.
[1] Ponencia, p. 38 and 44-45.
[2] Id. at 44.
[3] Id. at 36-40.
[4] REV. PEN. CODE, arts. 315 and 316.
Article 315. Swindling (estafa).
- Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the
case may be.
2nd. The penalty of prision correccional in its minimum and
medium periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period, if such amount is over 200 pesos
but does not exceed 6,000 pesos; and
4th. By arresto mayor in its medium and maximum periods, if
such amount does not exceed 200 pesos, provided that in the four cases
mentioned, the fraud be committed by any of the following means:
1.
With unfaithfulness or
abuse of confidence, namely:
|
(a) |
By altering the substance, quantity, or quality of
anything of value which the offender shall deliver by virtue of an obligation
to do so, even though such obligation be based on an immoral or illegal
consideration. |
|
(b) |
By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other property. |
|
(c) |
By taking undue advantage of the signature of the offended
party in blank, and by writing any document above such signature in blank, to
the prejudice of the offended party or any third person. |
2.
3.
By means of any of the
following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
|
(a) |
By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits. |
|
(b) |
By altering the quality, fineness or weight of anything
pertaining to his art or business. |
|
(c) |
By pretending to have bribed any Government employee,
without prejudice to the action for calumny which the offended party may deem
proper to bring against the offender. In this case, the offender shall be
punished by the maximum period of the penalty. |
|
(d) |
By postdating a check, or issuing a check in payment of an
obligation when the offender had no funds in the bank, or his funds deposited
therein were not sufficient to cover the amount of the check. The failure of
the drawer of the check to deposit the amount necessary to cover his check
within three (3) days from receipt of notice from the bank and/or the payee
or holder that said check has been dishonored for lack or insufficiency of
funds shall be prima facie evidence of deceit constituting false pretense or
fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.) |
|
(e) |
By obtaining any food, refreshment or accommodation at a
hotel, inn, restaurant, boarding house, lodging house, or apartment house and
the like, without paying therefor, with intent to defraud the proprietor or
manager thereof, or by obtaining credit at a hotel, inn, restaurant, boarding
house, lodging house or apartment house by the use of any false pretense, or
by abandoning or surreptitiously removing any part of his baggage from a
hotel, inn, restaurant, boarding house, lodging house, or apartment house
after obtaining credit, food, refreshment, or accommodation therein without
paying for his food, refreshment or accommodation. (As amended by Com. Act
No. 157, enacted November 9, 1936.) |
4.
5.
Through any of the
following fraudulent means:
|
(a) |
By inducing another, by means of deceit, to sign any
document. |
|
(b) |
By resorting to some fraudulent practice to insure success
in a gambling game. |
|
(c) |
By removing, concealing or destroying, in whole or in
part, any court record, office files, document or any other papers. |
Article 316. Other forms of swindling. - The
penalty of arresto mayor in its minimum and medium periods and
a file of not less than the value of the damage caused and not more than three
times such value, shall be imposed upon:
1.
Any person who,
pretending to be the owner of any real property, shall convey, sell, encumber
or mortgage the same.
2.
Any person who, knowing
that real property is encumbered, shall dispose of the same, although such
encumbrance be not recorded.
3.
The owner of any
personal property who shall wrongfully take it from its lawful possessor, to
the prejudice of the latter or any third person.
4.
Any person who, to the
prejudice of another, shall execute any fictitious contract.
5.
Any person who shall
accept any compensation given him under the belief that it was in payment of
services rendered or labor performed by him, when in fact he did not actually
perform such services or labor.
6.
Any person who, while
being a surety in a bond given in a criminal or civil action, without express
authority from the court or before the cancellation of his bond or before being
relieved from the obligation contracted by him, shall sell, mortgage, or, in
any other manner, encumber the real property or properties with which he
guaranteed the fulfillment of such obligation.
[5] Pres. Decree No. 1689 (1980), sec. 1.
[6] Belita v. Sy, 788 Phil. 580, 589
(2016) [Per J. Perez, Third Division], citing Hao v. People, 743
Phil. 204 [Per J. Brion, Second Division].
[7] Ponencia, p. 38.
[8] Id.
[9] Dissenting Opinion, J. Carpio, p. 27.
[10] Id.
[11] Ponencia, pp. 11-13.
[12] Id. at 12.
[13] Id. at 38.
[14] Id.
[15] Id.
[16] Id. at 39.
[17] Id.
[18] Per Home Development Mutual Fund's
official website <http://www.pagibigfund.gov.ph>,
mandatory membership is for:
- All employees who are or ought
to be covered by the Social Security System (SSS), provided that actual
membership in the SSS shall not be a condition precedent to the mandatory
coverage in the Fund. It shall include, but are not limited to:
- A private employee, whether
permanent, temporary, or provisional who is not over sixty (60) years
old;
- A household helper earning at
least P1,000.00 a month. A household helper is any person who renders
domestic services exclusively to a household such as a driver, gardener,
cook, governess, and other similar occupations;
- A Filipino seafarer upon the
signing of the standard contract of employment between the seafarer and
the manning agency, which together with the foreign ship owner, acts as
the employer;
- A self-employed person
regardless of trade, business or occupation, with an income of at least
P1,000.00 a month and not over sixty (60) years old;
- An expatriate who is not more
than sixty (60) years old and is compulsorily covered by the Social
Security System (SSS), regardless of citizenship, nature and duration of
employment, and the manner by which the compensation is paid. In the
absence of an explicit exemption from SSS coverage, the said expatriate,
upon assumption of office, shall be covered by the Fund.
- An expatriate shall refer to a
citizen of another country who is living and working in the Philippines.
- All employees, who are subject
to mandatory coverage by the Government Service Insurance System (GSIS)
regardless of their status of appointment, including members of the
Judiciary and constitutional commissions;
- Uniformed members of the Armed
Forces of the Philippines, the Bureau of Fire Protection, the Bureau of
Jail Management and Penology, and the Philippine National Police;
- Filipinos employed by
foreign-based employers, whether they are deployed here or abroad or a
combination thereof.
[19] Per Home Development Mutual Fund's
official website <http://www.pagibigfund.gov.ph>,
voluntary membership is for:
An individual at least 18 years old but not more than 65 years old may register
with the Fund under voluntary membership. However, said individual shall be
required to comply with the set of rules and regulations for Pag-IBIG members
including the amount of contribution and schedule of payment. In addition, they
shall be subject to the eligibility requirements in the event of availment of
loans and other programs/benefits offered by the Fund.
The following shall be allowed to apply for voluntary membership:
• Non-working spouses who devote full time to
managing the household and family affairs, unless they also engage in another
vocation or employment which is subject to mandatory; coverage, provided the
employed spouse is a registered Pag-IBIG member and consents to the Fund
membership of the non-working spouse;
• Filipino employees of foreign government or
international organization, or their wholly-owned instrumentality based in the
Philippines, in the absence of an administrative agreement with the Fund;
• Employees of an employer who is granted a
waiver or suspension of coverage by the Fund under RA 9679;
• Leaders and members of religious groups;
• A member separated from employment, local or
abroad, or ceased to be self-employed but would like to continue paying his/her
personal contribution. Such member may be a pensioner, investor, or any other
individual with passive income or allowances;
• Public officials or employees, who are not
covered by the GSIS such as Barangay Officials, including Barangay Chairmen,
Barangay Council Members, Chairmen of the Barangay Sangguniang Kabataan, and
Barangay Secretaries and Treasurers;
• Such other earning individuals/groups as may
be determined by the Board by rules and regulation.
[20] Ponencia, p. 5.
SEPARATE CONCURRING OPINION
CAGUIOA, J.:
I concur with the ponencia insofar as it finds no probable
cause to charge and arrest respondents Delfin S. Lee (Delfin Lee), Dexter L.
Lee (Dexter Lee), Christina Sagun (Sagun), Atty. Alex M. Alvarez (Alvarez) and
Cristina Salagan (Salagan) for the crime of syndicated estafa penalized under Presidential
Decree 1689 (PD 1689).[1] I share the ponencia's view
that respondents do not qualify as a syndicate as defined in PD 1689.
Under the Revised Penal Code (RPC), any person who shall defraud another by any
of the means set forth in Articles 315 and 316 shall be liable for estafa.
On April 6, 1980, President Ferdinand E. Marcos issued PD 1689 which treats the
crime of syndicated estafa.
Section 1 thereof, which incorporates Articles 315 and 316 by reference, reads:
SECTION 1. Any person or persons who shall
commit estafa or
other forms of swindling as defined in Articles 315 and 316 of the [RPC], as
amended, shall be punished by life imprisonment to death if the swindling (estafa) is
committed by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction, enterprise
or scheme, and the defraudation results in the misappropriation of moneys
contributed by stockholders, or members of rural banks, cooperatives, "samahang
nayon(s)", or farmers' associations, or of funds solicited by
corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if
the amount of the fraud exceeds 100,000 pesos.
Hence, to sustain a charge for syndicated estafa, the
following elements must be established: (i) estafa or other forms of swindling as
defined in Articles 315 and 316 of the RPC is committed; (ii) the estafa or
swindling is committed by a syndicate of five or more persons; and (iii)
defraudation results in the misappropriation of money contributed by
stockholders, or members of rural banks, cooperatives, "samahang
nayon(s)," or farmers' associations or of funds solicited by
corporations/associations from the general public.[2]
The resolution of the Petition requires the examination of the second and third
elements.
Second Element
In concurrence with the ponencia, and with the separate opinions of
Senior Associate Justice Antonio T. Carpio and Associate Justice Estela M.
Perlas-Bernabe, I find that the evidence presented against Alvarez establish
his participation as the fifth conspirator in the fraudulent scheme subject of
the charge.
To note, the Information in Criminal Case No. 18480 charging respondents with
syndicated estafa,
implicates Alvarez under the following terms:
x x x x
That in carrying out the aforesaid conspiracy x x x accused x x x Alvarez, did
then and there unlawfully, feloniously and knowingly notarize crucial pieces of
documents, consisting, among others, of the buyer's affidavit of income,
promissory note, and developer's affidavit (by Ms. Cristina Sagun) alleging
compliance with the conditions set by [Home Development Mutual Fund (HDMF)],
all of which are essential for the processing and approval of the purported
transaction; x x x.[3]
As aptly explained by Justice Carpio, Alvarez
admitted during the course of investigation that he notarized documents[4] for Globe Asiatique Realty Holdings Corporation (GA) in
exchange for a fixed monthly fee even as he was employed as manager of HDMF's
Foreclosure Department,[5] and that he often notarized these
documents in GA's head office during the same period.[6]
Notably, these acts became subject of the case entitled Alex M. Alvarez
v. Civil Service Commission and Home Development Fund, docketed as G.R. No.
224371.[7] Therein, the Court found Alvarez liable
for grave misconduct, dishonesty and conduct prejudicial to the best interest
of the service, and thus, dismissed Alvarez from service with finality.[8]
Again, as Justice Carpio astutely observes, Alvarez, being the manager of
HDMF's Foreclosure Department, evidently knew that the documents he was
notarizing for GA (e.g., Affidavits of Income, Contracts to Sell and
promissory notes, among others) were essential for the processing and approval
of the housing loans in question. In the words of Justice Carpio, this glaring
conflict of interest, coupled with the NBI's finding that majority of the
documents corresponding to the fictitious accounts had been notarized by
Alvarez,[9] show that he had knowledge of the
fraudulent scheme perpetrated by GA, and had actively participated therein.
In this connection, Associate Justice Leonen opines that Section 1 of PD 1689
does not specify the number of individuals who must be charged for an act of
fraud to qualify as syndicated estafa, but requires only that the number
of individuals acting out of a common design to defraud be at least five,[10] since certain contingencies may prevent all individuals
involved from standing trial.[11] Hence, he stresses
that the primary task of investigators and prosecutors in such cases is to
"demonstrate the fraudulent scheme employed by five or more
individuals,"[12] and, thereafter, "to demonstrate how
an individual accused took part in effecting that scheme."[13]
Justice Leonen's observations are well-taken. Indeed, the identification of the
individuals involved in the perpetration of syndicated estafa and the determination of the
nature of their participation are tasks that lie with investigators and
prosecutors. Indeed, it is possible to demonstrate the existence of a
fraudulent scheme employed by five or more individuals without having to bring
each of them to trial. However, it bears emphasis that at the point when the
identity and participation of the individual perpetrators are determined to the
extent sufficient to demonstrate the fraudulent scheme,
investigators and prosecutors are left with no reason to drop said individuals
from the criminal charge and exclude them from trial. And should the
investigators and prosecutors fail, or decide not to include these known
malefactors in the charge of syndicated estafa, then the Court is left with no
alternative but to determine the sufficiency of the said charge only on the
basis of the number of malefactors so included as accused - this number going
into the very definition of the law as to what constitutes syndicated estafa.
In any case, I submit that the second element of syndicated estafa is
already satisfied in view of Alvarez's participation in the fraudulent scheme,
as discussed.
Third Element
Considering that the fraudulent scheme in question was perpetrated by an entity
which does not solicit funds from the general public, I find
that the third element of syndicated estafa is absent. Thus, I likewise
concur with the ponencia in this respect.
In Galvez v. Court of Appeals[14] (Galvez),
Asia United Bank (AUB) charged private respondents therein with
syndicated estafa for
having deceived AUB into granting their corporation, Radio Marine Network
Smartnet, Inc. (RMSI), a P250-million Omnibus Credit Line based on the
misrepresentation that RMSI had sufficient capital and assets to secure the
financial accommodation. Resolving the case, the Court ruled that fraud only
qualifies as syndicated estafa under PD 1689 when the corporation or
association through which it is committed is an entity which receives
contributions from the general public:
On review of the cases applying the law, we note
that the swindling syndicate used the association that they manage to defraud
the general public of funds contributed to the association. Indeed, Section 1
of [PD] 1689 speaks of a syndicate formed with the intention of carrying out
the unlawful scheme for the misappropriation of the money contributed by the
members of the association. In other words, only those who formed and
manage associations that receive contributions from the general public who
misappropriated the contributions can commit syndicated estafa.
[Respondents], however, are not in any way related either by employment or
ownership to AUB. They are outsiders who, by their cunning moves were able to
defraud an association, which is the AUB. Theirs would have been a different
story, had they been managers or owners of AUB who used the bank to defraud the
public depositors.
This brings to fore the difference between the case of Gilbert Guy, et
al., and that of People v. Balasa, People v. Romero, and People
v. Menil, Jr.
In People v. Balasa, the accused formed the Panata Foundation
of the Philippines, Inc., a non-stock/non-profit corporation and the accused
managed its affairs, solicited deposits from the public and misappropriated the
same funds.
We clarified in Balasa that although, the entity involved, the
Panata Foundation, was not a rural bank, cooperative, samahang nayon or
farmers' association, it being a corporation, does not take the case out of the
coverage of [PD] 1689. [PD] 1689's third "whereas clause" states that
it also applies to other "corporations/associations operating on funds
solicited from the general public." It is this pronouncement about the
coverage of "corporations/associations" that led us to the ruling in
our [April 25, 2012] Decision that a commercial bank falls within the coverage
of [PD] 1689. We have to note though, as we do now, that the Balasa case,
differs from the present petition because while in Balasa, the
offenders were insiders, i.e., owners and employees who used their
position to defraud the public, in the present petition, the offenders were not
at all related to the bank. In other words, while in Balasa the
offenders used the corporation as the means to defraud the public, in the
present case, the corporation or the bank is the very victim of the offenders.
Balasa has been reiterated in People v. Romero, where
the accused Martin Romero and Ernesto Rodriguez were the General Manager and
Operation Manager, respectively, of Surigao San Andres Industrial Development
Corporation, a corporation engaged in marketing which later engaged in
soliciting funds and investments from the public.
A similar reiteration was by People v. Menil, Jr., where the
accused Vicente Menil, Jr. and his wife were proprietors of a business
operating under the name ABM Appliance and Upholstery. Through ushers and sales
executives, the accused solicited investments from the general public and
thereafter, misappropriated the same.[15] (Emphasis
supplied)
Based on the foregoing, I find that the third
element of syndicated estafa does
not obtain. To recall, the misappropriated funds in this case pertain to HDMF.
While such funds were undoubtedly solicited from the general public, it bears
emphasizing that HDMF was not the corporate vehicle used to perpetrate
the fraud. Rather, HDMF was the subject of the fraudulent scheme perpetrated by
GA. These facts, taken together, place the present case beyond the scope of
PD 1689.
Justice Carpio is of the position that PD 1689 does not require that the
perpetrator or the accused corporation/association be the one to solicit funds
from the public, so long as the defraudation results in the misappropriation of
money or of funds solicited by corporations/associations from the general
public.[16] With all due respect, I disagree. The
limited scope of PD 1689 is discemable from its "whereas clauses":
WHEREAS, there is an upsurge in the commission
of swindling and other forms of frauds in rural banks, cooperatives,
"samahang nayon(s)", and farmers' associations or corporations/associations
operating on funds solicited from the general public;
WHEREAS, such defraudation or misappropriation of funds contributed by
stockholders or members of such rural banks, cooperatives "samahang
nayon(s)", or farmers' associations, or of funds solicited by
corporations/associations from the general public, erodes the
confidence of the public in the banking and cooperative system, contravenes the
public interest, and constitutes economic sabotage that threatens the stability
of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at
least minimized, by imposing capital punishment on certain forms of swindling
and other frauds involving rural banks, cooperatives, "samahang
nayon(s)", farmers' associations or corporations/associations operating on
funds solicited from the general public[.] (Emphasis supplied)
The "whereas clauses" are clear - PD
1689 is intended to cover swindling and other forms of frauds involving
corporations or associations operating on funds solicited from the general
public. To relax the third element of syndicated estafa in the present case is to
adopt a liberal interpretation of PD 1689 to respondents' detriment; this
cannot be done without doing violence to the well-established rule on the
interpretation of criminal and penal statutes.
The early case of People v. Garcia[17] lends guidance:
x x x "Criminal and penal statutes must be
strictly construed, that is, they cannot be enlarged or extended by intendment,
implication, or by any equitable considerations. In other words, the language
cannot be enlarged beyond the ordinary meaning of its terms in order to carry
into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any reasonable
doubt, will be considered within the statute's operation. They must
come clearly within both the spirit and the letter of the statute, and where
there is any reasonable doubt, it must be resolved in favor of the person
accused of violating the statute; that is, all questions in doubt will be
resolved in favor of those from whom the penalty is sought." x x x[18] (Emphasis supplied)
The absence of the third element takes GA's
fraudulent scheme outside of the scope of PD 1689. Nevertheless, such
absence does not have the effect of absolving respondents herein of criminal
liability, as the fraudulent scheme remains punishable under Article 315 of the
RPC.
I find that the allegations in the Information, coupled with the evidence
offered thus far, establish the existence of probable cause to charge and try
respondents for the crime of simple estafa under the RPC, particularly
under Article 315(2)(a)[19] thereof due to respondents' involvement in
the implementation of GA's "Special Other Working Group Membership
Program" (SOWG).[20]
Respondents insist that GA's duty to warrant the veracity of its buyer-borrowers'
qualifications had been rendered inexistent by the Memorandum of Agreement
dated July 13, 2009 (MOA), owing to the summary judgment rendered by the
Regional Trial Court (RTC) of Makati in Civil Case No. 10-1120[21] which provides, in part:
The MOA dated [July 13, 2009] entered into
between [GA] and defendant HDMF which was duly approved by the Board of
Trustees of the latter, without any doubt, effectively superseded, amended, and
modified the provisions of the continuing [Funding Commitment
Agreements (FCAs)] and [Collection Servicing Agreements] which are inconsistent
with its provisions specifically in the following areas of concern:
a.
Warranty of the
developer on the approval of loan applications of [HDMF] member-borrowers who
bought houses and lots from the Xevera Bacolor and Mabalacat projects of [GA]
considering that under the MOA, (GA] is limited to loan counseling;
b.
Warranty against any
misrepresentation of the employees or agents of [GA] in connection with the
latter's evaluation and approval of loan accounts due to the fact that under
the MOA, [GA] is limited to loan counseling; and
c.
Right to unilateral
termination of the contracts because under the MOA, the contracts can only be
terminated upon mutual consent of both parties.[22]
Respondents posit that GA could not have
made any false representations which would have impelled HDMF to approve the
loan applications of its buyer-borrowers, so as to render them liable for
simple estafa under
Article 315(2)(a) of the RPC.
I disagree. I find, as do the majority, that GA's systematic endorsement of
fictitious and unqualified buyer-borrowers serves as sufficient basis to hold
the respondents liable for simple estafa - which liability stands
regardless of whether GA's warranties under the Funding Commitment Agreements
(FCAs) remained in effect.
To recall, the elements of simple estafa under Article 315(2)(a) are:
(i) there must be a false pretense or fraudulent representation as to the
offender's power, influence, qualifications, property, credit, agency, business
or imaginary transactions; (ii) that such false pretense or fraudulent
representation was made or executed prior to or simultaneously with the
commission of the fraud; (iii) that the offended party relied on the false
pretense, fraudulent act, or fraudulent means and was induced to part with his
money or property; and (iv) that, as a result thereof, the offended party
suffered damage.[23] In order for simple estafa of this kind to exist, the
false pretense or fraudulent representation must be made prior to, or at least
simultaneous with, the delivery of the thing subject of the fraud, it being
essential that such false statement or representation constitutes the very
cause or motive which induces the victim to part with his/her money.[24]
With respect to the element of false pretense or fraudulent representation, the
Court's ruling in Preferred Home Specialties Inc. v. Court of Appeals[25] is instructive:
A "representation" is anything which
proceeds from the action or conduct of the party charged and which is
sufficient to create upon the mind a distinct impression of fact conducive to
action. "False" may mean untrue, or designedly untrue, implying an
intention to deceive, as where it is applied to the representations of one
inducing another to act to its own injury. "Fraudulent"
representations are those proceeding from, as characterized by fraud, the
purpose of which is to deceive. "False pretense" means any trick or
device whereby the property of another is obtained.[26]
To be sure, there is nothing in Article
315 which requires that the matter falsely represented be the subject of an
obligation or warranty on the part of the offender. It is sufficient that
the false representation made by the offender had served as the driving force
in the victim's defraudation.
On this score, it bears stressing that HDMF agreed to adopt GA's proposed SOWG
on the basis of Delfin Lee's representations that a significant number of
buyers had expressed interest in purchasing units in its Xevera Projects. In
fact, after having secured billions of pesos under the first nine (9) FCAs
executed between August 12, 2008 and July 10, 2009, Delfin Lee sought to
further secure, as he did secure, additional funding commitment lines through
an accelerated loan take-out process, under the guise of a "rapid and
notable increase in the number of buyers" for GA's Xevera Projects.
However, as was later admitted by Delfin Lee himself, at least one
thousand (1,000) of the buyer-borrowers which GA had endorsed to HDMF were
questionable. Worse, Delfin Lee likewise admitted that these
questionable accounts were kept current not by the buyer-borrowers on record,
but by GA itself.[27] In turn, the subsequent audit conducted by
HDMF revealed that: (i) only 1.85% of the sampled accounts
under the SOWG category were actually occupied by their corresponding buyer-borrowers;
(ii) 83.38% of acquired units under the SOWG category were unoccupied; and
(iii) 7.69% of accounts under the SOWG category had been closed. These figures
account for at least 296 anomalous SOWG accounts out of the 320 accounts HDMF
sampled during the audit, which, in turn, constitutes 10% of the total number
of SOWG accounts booked by GA.[28] What is even more
telling is the fact that GA's remittance rate immediately fell from 100% to 0%
a month after HDMF suspended loan take-outs m favor of GA's buyers due to its
alarming findings.[29]
The sheer volume of anomalous SOWG accounts is indicative of willful and
fraudulent misrepresentation on the part of GA, for while the endorsement of a
handful of fictitious and/or inexistent buyer-borrowers may reasonably result
from negligence or even mere oversight, the endorsement such accounts in the
hundreds clearly shows the employment of an elaborate scheme to defraud, and
assumes the nature and character of fraud and deceit constitutive of
simple estafa under
Article 315(2)(a):
[F]raud, in its general sense is deemed to
comprise anything calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust, or confidence
justly reposed, resulting in damage to another, or by which an undue and unconscientious
advantage is taken of another. It is a generic term embracing all multifarious means
which human ingenuity can devise, and which are resorted to by one individual
to secure an advantage over another by false suggestions or by suppression of
truth and includes all surprise, trick, cunning, dissembling and any unfair way
by which another is cheated. And deceit is the false representation of
a matter of fact whether by words or conduct, by false or misleading
allegations, or by concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act upon it to his
legal injury.[30] (Emphasis supplied)
To my mind, this
elaborate scheme could not have been possible without the complicity of the
respondents, given the volume of transactions and amount of money involved in
its perpetration. Hence, the respondents should accordingly be charged and made
to stand trial.
Moreover, Justice Perlas-Bernabe correctly notes that even if it is
assumed, arguendo, that the MOA had the effect of negating GA's
warranties under the FCAs anent its buyer-borrowers' qualifications, no
less than nine (9) FCAs implementing the SOWG arrangement had nevertheless been
executed prior to the execution of the MOA. Accordingly, the offense of
simple estafa had
already been consummated in respect of these nine (9) FCAs, which account for
the staggering amount of Two Billion Nine Hundred Million Pesos
(P2,900,000,000.00) in loan proceeds.
On the basis of the foregoing, I vote that the petitions docketed as G.R.
Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730 and 230680 be GRANTED
IN PART, and that the public prosecutor be directed to amend the
Information to reflect the correct charge of simple estafa, under Article 315(2)(a) of the
RPC. Let the warrants of arrest against respondents Delfin S. Lee, Dexter L.
Lee, Christina Sagun, and Cristina Salagan STAND, and the warrant
of arrest against Atty. Alex M. Alvarez be deemed REINSTATED.
I concur with the ponencia insofar as it GRANTS the
petition docketed as G.R. No. 209424, and DIRECT the
remand of Civil Case No. 10-1120 entitled Globe Asiatique Realty
Holdings, Corp. et al. v. The Home Development Mutual Fund or Pag-Ibig Fund, et
al. to the Regional Trial Court of Makati City, Branch 58 for further
proceedings.
Finally, I concur with the ponencia insofar as it GRANTS the
petitions docketed as G.R. Nos. 208744 and 210095, and LIFTS the
Writ of Preliminary Injunction dated April 10, 2013 issued by the Regional
Trial Court of Pasig City, Branch 167.
[1] In relation to Article 315 of the RPC.
[2] Galvez v. Court of Appeals, 704
Phil. 463, 472 (2013) [Per J. Perez, Special Second Division].
[3] As quoted in the ponencia, p.
13.
[4] Including, among others, Affidavits of
Income, Contracts to Sell, promissory notes, Deeds of Assignment and
Certificates of Acceptance.
[5] Based on the NBI Report dated October 29,
2010, see J. Carpio, Dissenting Opinion, p. 25, citing rollo (G.R.
No. 209446), Vol. II, p. 722.
[6] Based on the transcript of clarificatory
questioning of Ms. Veniza Santos Panem, see J. Carpio, Dissenting Opinion, id.
at 23-25, citing rollo, Vol. VI (G.R. No. 209446), pp. 2550-2563.
[7] G.R. No. 224371, September 19, 2016 (Unsigned
Resolution).
[8] Id.
[9] See J. Carpio, Dissenting Opinion, pp.
25-26.
[10] See J. Leonen, Dissenting Opinion, p. 4.
[11] Id. at 5.
[12] Id.
[13] Id.
[14] Supra note 2.
[15] Id. at 473-474.
[16] See J. Carpio, Dissenting Opinion, p. 27.
[17] 85 Phil. 651 (1950) [Per J. Tuason, En
Banc].
[18] Id. at 656.
[19] RPC, Article 315(2)(a) provides:
ART. 315. Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow x x x:
x x x x
2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions; or by means of other similar deceits.
[20] See ponencia, p. 40.
[21] Entitled Globe Asiatique Realty
Holdings Corporation and Delfin Lee (in his capacity as President of the
Corporation) v. Home Development Mutual Fund (HDMF) or Pag-Ibig Fund, its Board
of Trustees and Emma Linda Faria, Officer in Charge, for Specific
Performance and Damages.
[22] Rollo (G.R. No. 209424), Vol.
II, p. 447.
[23] People v. Baladjay, G.R. No.
220458, July 26, 2017, p. 7 [Per J. Velasco, Jr., Third Division].
[24] See Preferred Home Specialties
Inc. v. Court of Appeals, 514 Phil. 574, 597-598 (2005) [Per J. Callejo,
Sr., Second Division].
[25] Id.
[26] Id. at 598-599.
[27] Rollo (G.R. No. 205698), Vol.
I, p. 334.
[28] Figures culled from the results of the
HDMF special audit, as narrated by the NBI in its Preliminary Investigation
Report dated October 29, 2010 (see rollo [G.R. No. 205698],
Vol. I, p. 334).
[29] Rollo (G.R. No. 205698), Vol.
I, p. 334.
[30] Lateo v. People, 666 Phil. 260,
273-274 (2011) [Per J. Nachura, Second Division] cited in the ponencia,
p. 40; see also Republic v. Mega Pacific eSolutions. Inc., 788
Phil. 160, 196-197 (2016) [Per C.J. Sereno, First Division].
SEPARATE OPINION
TIJAM, J.:
In 2008, Globe Asiatique Realty Holdings Corporation (GA), through its
president Delfin Lee, entered into Funding Commitment Agreements (FCA) with
Home Development Mutual Fund (HDMF) wherein it represented having interested
buyers in its Xevera Projects in Pampanga. Under the arrangement, GA's
supposedly existing buyers would be the loan applicants. GA will pre-process
the loan applications and in case of default in the amortization, GA would buy
back the loan accounts. This was followed by a second FCA, where the borrowers
would be composed of Special Other Working Group (OWG) or those HDMF members
who are not formally employed. In 2009, GA and HDMF executed a Memorandum of
Agreement (MOA) for an additional funding commitment line. More FCAs were
executed, reaching an aggregate amount of P7,007,806,000.00 released to GA.
HDMF subsequently discovered that some supposed borrowers under the OWG were
not aware of the loans they supposedly obtained and that some borrowers were
neither members of HDMF nor qualified to avail of housing loan. Consequently,
HDMF revoked the authority of GA under the FCA, suspended all take-outs for new
housing loans, required the buy-back of the 701 fraudulent accounts, and
cancelled the release of fund to GA.
These events led to:
(a) In October 2010, HDMF, through its
officer-in-charge Faria, filed a complaint for syndicated estafa against GA's officers Delfin Lee
and several others [1st DOJ Complaint].
(b) In November 2010, GA and Delfin Lee filed a
complaint for specific performance against HDMF before Regional Trial Court
(RTC) of Makati [Civil Case]. They sought to compel HDMF to
accept the replacements they proposed in lieu of the buyers who became
delinquent in their amortizations.
(c) 2nd, 3rd and 4th Department
of Justice (DOJ) criminal complaints against respondents were filed.
1st DOJ Complaint:
The DOJ issued its Review Resolution recommending the filing of estafa against
Delfin Lee, Christina Sagun (Sagun), Christina Salagan (Salagan), Dexter Lee
and Atty. Alex M. Alvarez (Atty. Alvarez) with no bail.
Sagun filed a certiorari petition with the Court of Appeals
(CA) while Atty. Alvarez filed his injunction petition with RTC Caloocan to
enjoin DOJ from filing the information.
The CA partially granted Sagun's petition. It held that Sagun's functions were
limited to collation of documents. It dismissed the complaint as against Sagun
and ordered the quashal of the arrest warrant issued against her.
On the other hand, GA clients, claiming to be victims of double sale made by
GA, also filed a complaint for syndicated estafa against respondents. [2nd DOJ
Complaint]
Delfin Lee filed an injunction petition with RTC Pasig to enjoin the DOJ from
proceeding with the 2nd DOJ Complaint on the ground that the
Civil Case for specific performance case constitutes a prejudicial question.
The RTC Pasig issued Temporary Restraining Order (TRO) and Writ of Preliminary
Injunction (WPI). DOJ filed a certiorari petition with CA. CA
granted DOJ certiorari petition. Delfin Lee appealed to Us. We
denied appeal which became final.
DOJ thus filed criminal case for syndicated estafa against Delfin Lee, Dexter
Lee, Sagun, Salagan and Atty. Alvarez with the RTC Pampanga.
The RTC Pampanga found probable cause for syndicated estafa and ordered the issuance of
warrants of arrest.
Delfin Lee, Dexter Lee and Salagan moved for reconsideration. Atty. Alvarez
also moved for reconsideration.
Pending resolution of his motion for reconsideration, Delfin Lee filed a certiorari petition
with the CA. Atty. Alvarez, Dexter Lee and Salagan also filed their
respective certiorari petitions with the CA.
The CA partially granted Delfin Lee's and Atty. Alvarez's petition and quashed
the arrest warrants issued against them. The CA dismissed Salagan's petition.
Hence, the petitions (People v. Alvarez, G.R. No. 209446; HDMF
v. Alvarez, G.R. No. 209489; HDMF v. Delfin Lee, G.R. No.
209852; People v. Delfin Lee, G.R. No. 210143; People v.
Dexter Lee, G.R. No. 228730; HDMF v. Dexter Lee, G.R. No.
228452; and Salagan v. People and HDMF, G.R. No. 230680).
Civil Case for specific performance:
GA and Delfin Lee filed a complaint for specific performance and damages,
seeking to compel HDMF to accept the replacements they had proposed in lieu of
the buyers/borrowers who had become delinquent in their amortization and
asserting that HDMF's inaction to accept the replacement forced GA to default
on its obligations under the MOA and FCAs, against HDMF.
The RTC Makati rendered a summary judgment in favor of GA and Delfin Lee.
Faria and Atty. Berberabe's motion for reconsideration filed by the Yorac Law
Firm was denied due to the latter's lack of authority from HDMF. Supposedly,
HDMF itself did not moved for reconsideration.
HDMF filed its certiorari petition with the CA.
The CA dismissed HDMF petition. In ruling so, the CA held that HDMF availed of
the wrong remedy to assail a summary judgment and that the certiorari petition
was not filed under the authority of the OGCC.
Hence, the petition (HDMF v. GA, G.R. No. 209424).
2nd, 3rd and 4th DOJ
complaints:
To enjoin the 2nd, 3rd, and 4th DOJ
complaints, Delfin Lee prayed for the issuance of a TRO with the RTC Pasig.
The RTC Pasig issued TRO and WPI against the conduct of the preliminary
investigation in the 2nd, 3rd and 4th DOJ
Complaints. It held that the summary judgment rendered by the RTC Makati
effectively removed the element of damage in the criminal complaints.
DOJ filed certiorari petition with the CA, but denied the
petition for having been filed out of time.
Hence, the petitions (DOJ v. Delfin Lee, G.R. No. 208744; DOJ v.
Delfin Lee, G.R. No. 210095).
I concur with the ponencia ordering the formal amendment of the Information
from syndicated estafa to
simple estafa and
that the arrest warrants remain valid.
To determine if the first paragraph of Section 1 of Presidential Decree (P.D.)
No. 1689 applies, two questions must be determined: first, whether
HDMF funds may be the subject of syndicated estafa; and second, whether
respondents, as GA officials, fall under the definition of who may commit
syndicated estafa.
As to the first question, the HDMF funds may be the subject of syndicated estafa.
Under paragraph 1 of Section 1, P.D. No. 1689, the funds misappropriated must
be:
|
1) |
moneys contributed by stockholders or members of rural
banks, cooperative, samahang nayons or farmers'
associations, or |
|
2) |
funds solicited from the general public. |
Section 10 of Republic Act (R.A) No. 9679 or the HDMF Law of 2009 describes the
HDMF fund as "private in character, owned wholly by the members,
administered in trust and applied exclusively for their benefit." The
personal and employer contributions are to be fully credited to each member and
shall earn dividends. The fund also constitutes as a provident fund of each
member, to be paid upon termination of membership. In other words, HDMF funds
are funds held in trust for the member and are provident funds to be paid to
the member, or his estate or beneficiaries, upon termination of his membership.
As in the nature of provident funds, the HDMF funds operate as a savings scheme
consisting of contributions from the members in monetary form which, in turn,
earns dividends, may be used as a loan facility and provides supplementary
welfare benefit to members. It is akin to funds held by banks,
which is still wholly owned by the depositor but is loaned to the bank which
the latter may use/invest and thus earns interest for the depositor. In other
words, HDMF funds may thus properly be regarded as moneys contributed by HDMF
members which may be the subject of syndicated estafa.
Nevertheless, as to the second question, the respondents GA officials do not
fall under the definition of who may commit syndicated estafa. Jurisprudence, as it stands,
particularly in Galvez, et al. v. Court of Appeals, et al.,[1] requires that the syndicate must have used the association
that they manage to defraud the general public of the funds contributed to the
association, to wit:
[W]e note that the swindling syndicate used the
association that they manage to defraud the general public of funds contributed
to the association. Indeed, Section 1 of Presidential Decree No. 1689 speaks of
a syndicate formed with the intention of carrying out the unlawful scheme for
the misappropriation of the money contributed by the members of the
association. In other words, only those who formed [or] manage associations
that receive contributions from the general public who misappropriated the
contributions can commit syndicated estafa.[2]
Otherwise stated, the
syndicate must have used the rural banks, cooperative, samahang nayons or
farmers' associations they formed, owned, or managed to misapropriate the
moneys contributed by their stockholders or members, or the syndicate must have
used the corporation or association they formed, owned, or managed to
misappropriate the funds it solicited from the general public.
Here, the GA officials admittedly did not form, own or manage HDMF. It was
neither alleged in the Information that the GA officials used HDMF to defraud
the general public. Since it was HDMF (the "association" holding the
moneys contributed by its members) which is the victim and the juridical person
used by the syndicate to defraud, P.D. No. 1689 does not apply.
Finally, independently of whether the threshold number of accused, i.e.,
five, is met (on whether Atty. Alvarez should properly be included or not), the
fact remains that four out of the five accused are neither owners nor employees
of HDMF. This places the instant case outside the scope of P.D. No. 1689.
Since the elements of simple estafa appear to be present, respondents, including
Atty. Alvarez of the HDMF, should be charged of simple estafa. The arrest warrants against them
stand, and if quashed, should be reinstated.
I concur with ponencia reversing the CA Decision denying HDMF's certiorari
petition against RTC Makati's summary judgment but, instead, of remanding to
CA, the case should be remanded to RTC Makati for disposition on the merits.
The RTC Makati gravely abused its discretion when it rendered a summary
judgment in the Civil Case for specific performance when it actually deemed
that the issue as to damages necessitates further proceedings.
As suggested by Justice Estela M. Perlas-Bernabe, there is no need to remand
the case to the CA to determine if the RTC Makati gravely abused its discretion
especially so when proper evaluation of the merits may be had as when copies of
various pleadings and documents are in possession of the Court. Instead, the
case should be remanded to RTC Makati for further proceedings.
The Court's ruling charging respondents of simple estafa and affirming the validity of
the arrest warrants does not pre-empt nor render moot the Civil Case for specific
performance. Suffice to say that the instant petitions deal with the
determination of the probable guilt of respondents for the crime of
simple estafa;
while the Civil Case simply determines contractual breach.
Under these premises, I vote as follows:
[1] 704 Phil. 463 (2013).
[2] Id. at 473.
THIRD DIVISION
[ G.R. No. 192925, December 09, 2016 ]
JOSE RIZAL L. REMO, REYNALDO G. PANALIGAN, TITA
L. MATULIN, ISAGANI CASALME, CIPRIANO P. ROXAS, CESARIO S. GUTIERREZ, CELSO A.
LANDICHO AND EDUARDO L. TAGLE, PETITIONERS, V. THE HONORABLE SECRETARY OF
JUSTICE AGNES VST DEVANADERA,HONORABLE JUDGE DANILO SANDOVAL, HONORABLE CITY
PROSECUTOR CARLOS BALLELOS, BATANGAS II ELECTRIC COOPERATIVE, INC., RUPERTO H.
MANALO, NATIONAL ELECTRIFICATION ADMINISTRATION, LOURDES CRUZ, VIRGINIA BORJA,
EDGAR DE GUZMAN AND RODULFO CANLAS, RESPONDENTS. DECISION
PEREZ,
J.:
This case is an appeal[1] from the decision[2] dated 18 February
2010 and resolution[3] dated 16 July 2010 of the Court of Appeals
(CA) in CA-G.R. SP No. 110838.
The
facts:
Prelude: BATELEC II, the Contracts, the NEA
Audit
The
Batangas II Electric Cooperative, Inc. (BATELEC II) is a cooperative engaged in
the distribution and transmission of electric power to certain parts of the
Batangas province.[4] It was organized and duly registered as a
non-profit electric cooperative with the National Electrification
Administration (NEA), pursuant to Presidential Decree (PD) No. 269, on 12
August 1977.
BATELEC
II began its operations on 24 April 1978.
* * *
In
2004, BATELEC II entered into two (2) contracts that required it to spend a
total of P81,100,000.00.
The
first contract was entered into by BATELEC II with the I-SOLV Technologies,
Inc. (ITI),[5] as represented by its president Manuel
Ferdinand Trinidad (Trinidad). The contract was for the enterprise-wide
automation and computerization of BATELEC II. Pursuant to the said contract,
BATELEC II obligated itself to pay an aggregate amount of P75,000,000.00[6] to ITI in exchange of the total computerization solutions to
be provided by the latter.
The
second contract, on the other hand, was with the Supertrac Motors Corporation
(Supertrac) and it was for the procurement of ten (10) boom trucks by BATELEC
II. Under such contract, BATELEC II agreed to pay the sum of P6,100,000.00 to
Supertrac as consideration for the ten (10) boom trucks to be supplied by the
latter.[7] Supertrac was represented in the contract
by its president, Rodrigo B. Bangayan (Bangayan).
* * *
In
2005, a NEA audit report[8]found the ITI and Supertrac
contracts as having been replete with various irregularities and violations of
NEA guidelines. Among the irregularities and anomalies noted in the said audit
report were:[9]
A. Re: the ITI Contract
1.
The decision to
computerize BATELEC II was immediately implemented by the cooperative's
directors without any documented comprehensive technical study or project
design.
2.
The award of the
computerization contract to ITI was not preceded by competitive bidding as
required by NEA regulations.
3.
The directors of BATELEC
II directly participated in the award of the computerization contract to ITI.
Such participation thus violates NEA Bulletin No. 35 under Prohibition No. 2,
which states that the members of the board of directors of an electric
cooperative "[s]hould not xxx involve themselves on functions that [do
not] inherently belong to [m]anagement such as, for example, material purchases
and procurement. x x x they should not sit as members of the [electric
cooperative] 's bid[s] and awards committee but should confine themselves to
laying down policies for [m]anagement's guidance."[10]
4.
ITI is grossly
unqualified to perform the P75,000,000.00 computerization contract:
i.
ITI was registered with
the Securities and Exchange Commission (SEC) only on 6 April 2004 or just nine
(9) days before the contract.
ii.
ITI is undercapitalized
for the venture. Its authorized capital stock is only worth P1,000,000.00, of
which only a quarter—or merely P250,000.00—has been subscribed. Of its
subscribed capital stock, only P62,500.00 is actually paid.
5.
The computerization
contract was implemented without prior approval from the NEA.
B. Re: the SMC Contract
1.
The boom trucks of
Supertrac were overpriced. Supertrac sells a boom truck at P610,000.00 per
unit. A similar boom truck sold by a similar company[11] only sells at P320,000.00.
2.
The bidding process that
preceded the award of the boom trucks contract to Supertrac appears to be
rigged. There are indications that three (3) of the four (4) companies that
participated in the bid i.e., Supertrac, the Sapphire Motors Corporation (SMC)
and the Road & Tracks Motor Corporation (RTMC), are actually related, if
not totally the same, companies:
i.
The business address of
the RTMC and the home address of one of its directors is the same as the home
address of Bangayan—the president of Supertrac and the home addresses of two
(2) directors of SMC.
ii.
Ms. Rosalinda Accad is
both the director of Supertrac and SMC.
iii.
The delivery receipts
nos. 3294, 3295, 3366 and 3337 that was issued by Supertrac to evidence its
delivery of four (4) of the ten boom trucks to BATELEC II, were signed by Ms.
Judith Sioco (Sioco) and approved by Ms. Ginalyn Valenton (Valenton). Sioco was
also the signatory to the bid proposal of RTMC, while Valenton is also branch
head of SMC.
***
Spurred
by the audit report's findings, some members-consumers of BATELEC II filed
before the NEA an administrative complaint[12] charging the
directors of the cooperative who approved the ITI and Supertrac contracts with
gross mismanagement and corruption. Among those charged in the complaint were
then BATELEC II directors and now herein petitioners Reynaldo G. Panaligan,
Isagani S. Casalme, Cesario S. Gutierrez, Celso A. Landicho, Tita L. Matulin,
Jose Rizal L. Remo, Cipriano P. Roxas and Eduardo L. Tagle.[13]
On
5 October 2006, the NEA rendered a decision ordering, among others, the removal
of petitioners as directors of BATELEC II as well as the filing of appropriate
criminal and civil actions against them by the remaining directors of BATELEC
II.
On
9 October 2006, the NEA,[14] in conjunction with its decision, issued
an order[15] directing the remaining directors[16] of BATELEC II, led by private respondent Ruperto H. Manalo
(Manalo), to reorganize and elect a new set of officers for the cooperative
immediately.
Pursuant
to the 9 October 2006 order of the NEA, the remaining directors of BATELEC II
conducted an election on 10 October 2006. In that election, Manalo was voted as
new president of BATELEC II.[17]
The Criminal Complaint, the Resolution of the
OCP and
Criminal Cases No. 0503-2007 and 0504-2007
In
the meantime, Manalo and the other private respondents[18] (Manalo et al.)—acting ostensibly for and on behalf of BATELEC II—filed a
criminal complaint against petitioners, Trinidad and Bangayan before the Office
of the City Prosecutor (OCP) of Lipa City. The complaint was docketed in the
OCP as I.S. Nos. 07-0552 to 0553.
The
complaint accused petitioners, Trinidad and Bangayan of having committed the
crime of syndicated estafa under Presidential Decree (PD) No. 1689 in relation to
Article 315(1)(b) of the Revised Penal Code (RPC). Manalo et al. alleged that petitioners, Trinidad and
Bangayan acted in conspiracy, and as a syndicate, to defraud BATELEC II by way
of the highly irregular and anomalous ITI and Supertrac contracts.[19] According to Manalo et al., the implementation of such contracts have led
to the misappropriation of millions and millions of pesos worth of funds of
BATELEC II.
Preliminary
investigation thereafter ensued.
On
9 November 2007, the OCP[20] issued a resolution[21] in I.S. Nos. 07-0552 to 0553. In the said resolution, the
OCP found probable cause to hail petitioners to court albeit only for two (2)
counts of simple estafa under Article 315(1)(b) of the RPC. The OCP, however,
absolved Trinidad and Bangayan on the ground of lack of evidence against them.
The dispositive portion of the resolution thus reads:[22]
WHEREFORE, premises considered, let informations for violation of Article
315 1 (b) of the Revised Penal Code for two (2) counts be filed in the proper
court against [petitioners] Reynaldo G. Panaligan, Tita L. Matulin, Jose Rizal
[L.] Remo, Isagani S. Casalme, Cipriano P. Roxas, Cesario S. Gutierrez, Celso
A. Landicho and Eduardo L. Tagle.
The
complaint against respondents Ferdinand Trinidad and Rodrigo Bangayan is hereby
DISMISSED for insufficiency of evidence.
Pursuant
to the OCP resolution, two (2) informations[23] for simple estafa under Article 315(1)(b) of the RPC
were filed against petitioners before the Regional Trial Court (RTC) of Lipa
City. Both informations were raffled to Branch 12, presided by Judge Danilo S.
Sandoval (Judge Sandoval). The information pertaining to the estafa committed in relation with the ITI
contract was docketed as Criminal Case No. 0503-2007 whereas that pertaining to
the estafa committed in
relation with the Supertrac contract was docketed as Criminal Case No.
0504-2007.
Petitions For Review Before the Justice Secretary
and the Flip-Flopping Resolutions
The
filing of the informations notwithstanding, petitioners and Manalo still filed
their respective petitions for review assailing the OCP resolution before the
Secretary[24] of the Department of Justice (DOJ).
In
their petition for review,[25] petitioners challenged, among others, the
OCP's finding of probable cause for simple estafa against
them. Petitioners insist upon their absolute innocence of any crime and pray
for the dismissal of the complaint against them.
In
his petition for review, on the other hand, Manalo sought to question the OCP's
absolution of Trinidad and Bangayan and also its downgrading of the indictable
offense from syndicated estafa to
simple estafa. Manalo maintained
that petitioners, Trinidad and Bangayan should all be charged with the crime of
syndicated estafa.[26]
On 26 November 2008, the DOJ Secretary issued a resolution[27] dismissing petitioners' petition for review for lack of
merit and favoring Manalo's petition. The DOJ Secretary agreed with Manalo's
assertion that petitioners, Trinidad and Bangayan should all be charged and be
so charged with the crime of syndicated estafa.
Thus, in his resolution, the DOJ Secretary ordered the modification of the OCP
resolution and directed the filing in court of two (2) separate informations
for syndicated estafa—one against
petitioners and Trinidad and another against petitioners and Bangayan. The
dispositive portion of the resolution accordingly provides:[28]
WHEREFORE, the assailed Resolution is hereby MODIFIED and that the Investigating State
Prosecutors are directed to file Two (2) Separate Informations in Court, to
wit:
1.
Information for
Syndicated Estafa under
Presidential Decree 1689 in relation to Article 315 paragraph 1 (b) of the
Revised Penal Code against [petitioners] Reynaldo Panaligan, Jose Rizal Remo,
Tita Matulin, Isagani Casalme, Cipriano Roxas, Cesario Gutierrez, Celso
Landicho, Eduardo [L.] Tagle and Manuel Ferdinand Trinidad.
2.
Information for Syndicated Estafa under Presidential Decree 1689 in
relation to Article 315 paragraph 1 (b) of the Revised Penal Code against
[petitioners] Reynaldo Panaligan, Jose Rizal Remo, Tita Matulin, Isagani
Casalme, Cipriano Roxas, Cesario Gutierrez, Celso Landicho, Eduardo L. Tagle
and Rodrigo Bangayan.
SO ORDERED.
Petitioners,
Trinidad and Bangayan all filed their respective motions for reconsideration
from the above resolution.
On 28 January 2009, the DOJ Acting Secretary issued a resolution[29] granting Trinidad's motion for reconsideration. In the said
resolution, the DOJ Secretary held that there is not enough evidence presented
during the preliminary investigation that sufficiently establishes that
Trinidad was in conspiracy with the petitioners.[30] Hence, in the resolution, the DOJ Secretary ordered the
exclusion of Trinidad from the informations for syndicated estafa that were required to be filed pursuant to
the 26 November 2008 resolution.
On
24 February 2009, petitioners filed a new motion praying for the resolution of
the issues raised in their original motion for reconsideration (motion to
resolve issues).[31]
On 6 May 2009, the DOJ Secretary issued a resolution[32] granting Bangayan's motion for reconsideration. In the said
resolution, the DOJ Secretary ordered the exclusion of Bangayan from the
informations for syndicated estafa that were required to be filed pursuant to the 26 November
2008 resolution. The resolution based its absolution of Bangayan on the ground
that he, like Trinidad, was not shown to have conspired with petitioners
regarding the approval of the Supertrac contract.[33]
On 2 June 2009, the DOJ Secretary issued an order[34] denying petitioners' motion for reconsideration.
On 4 June 2009, however, the DOJ Secretary issued
another resolution;[35] this time, acting upon the petitioners' motion to resolve
issues. In this resolution, the DOJ Secretary ordered the charges to be filed
against petitioners, pursuant to the 26 November 2008 resolution, to be
downgraded from syndicated estafa to
mere simple estafa under
Article 315 paragraph 1 (b) of the RPC.
Aggrieved
by the 4 June 2009 resolution, Manalo et al. filed a motion for reconsideration.
On 28 July 2009, the DOJ Secretary[36] issued a resolution[37] granting Manalo et al.'s motion for reconsideration. In another flip flop, the DOJ
Secretary opined that Trinidad and Bangayan should both be charged along with
the petitioners and the charge against them ought to be syndicated estafa. Hence, in this resolution, the DOJ
Secretary reverted back to the original disposition under the 26 November 2008
resolution and again required the filing of two (2) informations for
syndicated estafa—one against
petitioners and Trinidad and another against petitioners and Bangayan.
Trinidad
and Bangayan each filed a motion for reconsideration from the 28 July 2009
resolution.[38]
The Amendment of the Informations, the Issuance
of Warrants of Arrests
and the Exclusion Anew of Trinidad and Bangayan
On
the other hand, the OCP filed before the RTC amended informations in Criminal
Case Nos. 0503-2007 and 0504-2007 on 7 October 2009.[39] The amended informations were filed in compliance with the
28 July 2009 resolution of the DOJ Secretary, thus:
1.
In Criminal Case No.
0503-2007, the OCP filed an amended information for syndicated estafa under PD No. 1689 in relation to Article
315(1)(b) of the RPC against petitioners and Trinidad, and
2.
In Criminal Case No.
0504-2007, the OCP filed an amended information for syndicated estafa under PD No. 1689 in relation to Article
315(1)(b) of the RPC against petitioners and Bangayan.
On
even date, the RTC, through Judge Sandoval, forthwith issued an order[40] admitting the amended informations and directing the
issuance of warrants of arrest against the petitioners, Trinidad and Bangayan.
Subsequently,
however, the DOJ Acting Secretary issued resolutions[41] granting the motions for reconsideration of Trinidad and
Bangayan and ordered their exclusion anew from the amended informations. The
RTC, for its part, eventually approved of such exclusion.
Petitioners' Certiorari to the CA,
the Ruling of the CA and the Present Appeal
Upset
by the turn of events, petitioners filed with the CA a petition for certiorari[42] challenging the validity of: (a) the 28 July 2009 resolution
of the DOJ Secretary and (b) the warrants of arrest issued by the RTC in
Criminal Case Nos. 0503-2007 and 0504-2007. This petition was docketed as CAG.R.
SP No. 110838.
Petitioners
allege that the 28 July 2009 resolution of the DOJ Secretary and the warrants
of arrest issued by the RTC have been products of grave abuse of discretion.
They specifically claim:[43]
1.
The DOJ Secretary
gravely abused its discretion when it ordered the filing of informations for
syndicated estafa, despite the fact
that not all the elements of such crime, or even of simple estafa, has been established in this case:
a.
Manalo et al. presented no evidence establishing that
petitioners misappropriated or converted funds of BATELEC II. The funds of
BATELEC II were duly paid to Supertrac and ITI pursuant to the contracts and it
was never shown that petitioners had been in conspiracy with either
corporation.
b.
Even assuming the
existence of estafa, petitioners
cannot be considered as a "syndicate" pursuant to PD No. 1689 since they never formed themselves
into a corporation or cooperative with the sole purpose of defrauding the
public.
c.
Moreover, there is no
evidence showing that the funds used in the Supertrac and ITI contracts were
derived from contributions paid by members of BATELEC II.
2.
Judge Sandoval likewise
gravely abused his discretion when he issued the warrants of arrest almost
immediately after the amended informations; relying merely on the resolution of
the prosecutors and the DOJ Secretary and without making a personal
determination of the existence of probable cause as required by the Constitution.
On
18 February 2010, the CA rendered a decision[44] in CA-G.R. SP No.
110838 dismissing the certiorari petition of petitioners. It ascribed no grave abuse of discretion
either on the part of the DOJ Secretary for her 28 July 2009 resolution or on
the part of Judge Sandoval for his warrants of arrest.
Petitioners
moved for reconsideration, but the CA remained steadfast.[45]
Hence,
this appeal.
OUR RULING
The
facts upon which the DOJ Secretary premised its finding of probable cause
against petitioners are clear and not disputed.
The
petitioners were the directors of BATELEC II that approved, for the said
cooperative, the contracts with ITI and Supertrac. The contracts required
BATELEC II to pay a total ofll81,000,000.00 to ITI and Supertrac in exchange
for the system-wide computerization of the cooperative and for ten (10) boom
trucks. It was, however, alleged that petitioners—in approving the ITI and Supertrac
contracts—have committed undue haste, violated various NEA guidelines and paid
no regard to the disadvantageous consequences of the said contracts to the
interests of BATELEC II in general.
Meanwhile,
it has been established that Trinidad and Bangayan—the presidents of ITI and
Supertrac, respectively—have not been in conspiracy with petitioners insofar as
the approval of the contracts were concerned.[46]
From
the foregoing, the DOJ Secretary held that petitioners ought to be indicted for
two counts of syndicated estafa under
PD No. 1689 in relation to Article 315(1)(b) of the RPC.
We
disagree.
Our
review of the established facts vis-a-vis the applicable laws and jurisprudence had made it clear that
such indictment could not have been based on any valid finding of probable
cause: first, as the petitioners
cannot be regarded as a "syndicate" under PD No. 1689 and second, as they could not even be considered to have
committed simple estafa under
Article 315(1)(b) of the RPC.
We
find then that the finding of probable cause against petitioners to be grossly
erroneous. The petitioners were right. The 28 July 2009 resolution of the DOJ
Secretary, their indictment and, necessarily, the warrants of arrest issued
against them were indeed products of grave abuse of discretion. All must be, as
they should have been, set aside.
Hence,
we grant the instant appeal.
I
We
begin with the basics.
Any
person who causes pecuniary damage upon another through any of the acts of
abuse of confidence or of deceit, as enumerated in Article 315 of the RPC,
commits the crime of estafa or
swindling. One of such acts of abuse of confidence is that specified in Article 315(1)(b) of the
RPC, viz:[47]
(b)
By misappropriating or converting, to the prejudice of another, money, goods,
or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation be
totally or partially guaranteed by a bond; or by denying having received such
money, goods, or other property.
Broken
down, estafa under Article
315(1)(b) of the RPC has the following elements:[48]
1.
That money, goods or
other personal property is received by the offender in trust, or on commission,
or for administration, or under any other obligation involving the duty to make
delivery of, or to return the same;
2.
That there be
misappropriation or conversion of such money or property by the offender or
denial on his part of such receipt;
3.
That such
misappropriation or conversion or denial is to the prejudice of another; and
4.
That there is a demand
made by the offended party on the offender.
The
crime known as syndicated estafa, on the other hand, is set forth and penalized by Section 1 of PD
No. 1689. The said section reads:
Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in
Article 315 and 316 of the Revised Penal Code, as amended, shall be punished by
life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five
or more persons formed with the intention of carrying out the unlawful or
illegal act, transaction, enterprise or scheme, and the defraudation results in
the misappropriation of moneys contributed by stockholders, or members of rural
banks, cooperative, "samahang nayon(s)", or farmers' associations, or of funds solicited by
corporations/associations from the general public.
When
not committed by a syndicate as above defined, the penalty imposable shall be
reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.
In
essence, syndicated estafa is
but the commission of any kind of estafa under
Article 315 of the RPC (or other forms of swindling under Article 316) with two
(2) additional conditions: one, the estafa or
swindling was perpetrated by a "syndicate" and two,
the estafa or swindling resulted
in the "misappropriation of money contributed by stockholders, or members
of rural banks, cooperative, samahang nayon(s), or farmers association, or of
funds solicited by corporations/associations from the general public." Thus, in People v. Balasa,[49] we detailed the
elements of syndicated estafa as
follows:
1.
Estafa or other forms of swindling as defined in
Articles 315 and 316 of the Revised Penal Code is committed;
2.
The estafa or swindling is committed by a
syndicate; and
3.
The defraudation results
in the misappropriation of moneys contributed by stockholders, or members of
rural banks, cooperatives, samahang nayon(s), or farmers associations, or of funds solicited
by corporations/associations from the general public.
The
penalty for syndicated estafa under
PD No. 1689 is significantly heavier than that of simple estafa under Article 315 of the RPC.[50] The penalty irnposable for simple estafa follows the schedule under Article
315 and is basically dependent on the value of the damage or prejudice caused
by the perpetrator, but in no case can it exceed twenty (20) years
imprisonment.[51] Syndicated estafa, however, is punishable by life imprisonment to death
regardless of the value of the damage or prejudiced caused.
II
The
first reason why the finding of probable cause for syndicated estafa against petitioners cannot stand
is because they, under the circumstances, cannot be considered as a "syndicate" under PD No. 1689. As stated in the
foregoing discussion, in order to commit the crime of syndicated estafa, the estafa must
be committed by a "syndicate"
as contemplated by the law.
In
PD No. 1689, the term syndicate is described as "consisting of five or
more persons formed with the intention of carrying out the unlawful or illegal
act, transaction, enterprise or scheme x x x." By itself, however, such description can be
vague and somewhat confusing. Indeed, going by the description alone, one can be
led into the inference that an estafa committed
by five conspiring persons against any of the stockholders or members of the
associations mentioned under PD No. 1689 would automatically give rise to the
crime of syndicated estafa. But is
such inference really what the law contemplates?
Fortunately,
the true import of the term "syndicate" has already been elucidated
upon by relevant jurisprudence. Drawing from textual clues from the statute
itself, our case law answers the foregoing query with a clear no.
Syndicate Must Be Five or More
Persons Who Used The Association
That They Formed or Managed to
Defraud Its Own Stockholders,
Members or Depositors.
Our
resolution in the case of Galvez v. Court of Appeals, et al.[52] points us in the
right direction. In Galvez, a criminal complaint
for syndicated estafa was
filed against five individuals who were the interlocking directors of two
corporations that purportedly defrauded a commercial bank. Acting on such
complaint, the city prosecutor issued a resolution finding probable cause to
indict the directors for simple estafa under
Article 315(2)(a) of the RPC, but not for syndicated estafa. This resolution was subsequently
reversed by the DOJ Secretary upon review, but was ultimately sustained by the
CA on certiorari.
In its appeal to this Court, the commercial bank raised the question of whether
the city prosecutor was correct in not charging the directors with
syndicated estafa.
Galvez resolved the question in the affirmative. Citing the text of
Section 1 of PD No. 1689 as well as previous cases that applied the said
law, Galvez declared that in
order to be considered as a syndicate under PD No. 1689, the perpetrators of
an estafa must not only be
comprised of at least five individuals but must have also
used the association that they formed or managed to defraud its own
stockholders, members or depositors. Thus:[53]
On
review of the cases applying the law, we note that the swindling syndicate used
the association that they manage to defraud the general public of funds
contributed to the association. Indeed, Section 1 of Presidential Decree No. 1689 speaks of a
syndicate formed with the intention of carrying out the unlawful scheme for the
misappropriation of the money contributed by the members of the association. In
other words, only those who formed [or] manage associations that receive
contributions from the general public who misappropriated the contributions can
commit syndicated estafa. xxx. (Emphasis supplied).
Hence, Galvez held that since the directors therein were
"outsiders"
or were not affiliated in any way with the commercial bank whose funds they
allegedly misappropriated, they cannot be charged with syndicated estafa but only of simple estafa under Article 315(2)(a) of the
RPC.
Dissecting
the pronouncement in Galvez for
our present purposes, however, we are able to come up with the following
standards by which a group of purported swindlers may be considered as a
syndicate under PO No. 1689:
1.
They must be at least
five (5) in number;[54]
2.
They must have formed or
managed[55] a rural bank, cooperative, "samahang nayon," farmer's association or any other
corporation or association that solicits funds from the general public.[56]
3.
They formed or managed
such association with the intention of carrying out an unlawful or illegal act,
transaction, enterprise or scheme[57] i.e., they
used the very association that they formed or managed as the means to defraud
its own stockholders, members and depositors.[58]
Guided
by the foregoing standards, we shall now venture to apply the same to the
instant case.
Petitioners Do Not Constitute a
Syndicate; They Did Not Use
BATELEC II as a Means to Defraud
Its Members of their Contributions
There
is no doubt that petitioners met the first and second standards under Galvez: petitioners are more than five (5) in number
and they, as its directors, had management of BATELEC II—an electric
cooperative. What is lacking on the part of the petitioners is the third
standard. Petitioners do not constitute a syndicate under PD No. 1689, as
they never used BATELEC II as a means to defraud its members.
To
satisfy the third standard under Galvez, it must be established that the purported swindlers used the
very association they formed or managed to defraud its members. Since the
association contemplated by PD No. 1689 must be one that "solicit[s] fund from the
general public," it follows that the fraud committed
through such association must pertain to its receipt of contribution or
solicitation from its stockholders, members or the public. Such kind of fraud is evidently missing in the
case at bench:
First. It is undisputed that the contributions of the members of
BATELEC II were paid to the latter not out of any fraudulent act, transaction
or scheme. As admitted by Manalo et al., the "contributions" of the members of BATELEC II comprise of their payments for
the electricity being supplied by the cooperative.[59] In other words, the contributions of the members of
BATELEC II were received by the latter through legitimate transactions.
Second. As BATELEC II received the contributions of its
members via legitimate
transactions, it cannot be said that the petitioners had used the cooperative
to commit fraud on any of its members. Any alleged misuse of such contributions
committed by petitioners after BATELEC II has already received them
through legal means would not constitute as
defraudation committed through the cooperative, but would merely be an act of
mismanagement committed against it. Clearly then, the third standard of Galvez was not met.
Verily,
petitioners cannot be considered as a syndicate under PD No. 1689. They,
therefore, cannot also be charged with syndicated estafa under the said law.[60]
III
There
is, however, a more fundamental reason why the finding of probable cause
against petitioners should fail. The petitioners, under the circumstances,
could not even be considered to have committed simple estafa under Article 315(1)(b) of the
RPC.
The
first two (2) elements of estafa under
Article 315(1)(b) of the RPC do not exist by the factual circumstances of this
case.
As Directors of BATELEC II that
Approved the IT/ and Supertrac Contracts,
Petitioners Did Not Receive Funds of the
Cooperative; They Don't Have Juridical
Possession of Cooperative Funds
The
first element of estafa under
Article 315(1)(b) of the RPC is that the offenders must have received money,
goods or other personal property—(a) in trust (b) on commission (c) for
administration or (d) under any obligation involving the duty to make delivery
of, or to return the same. This element is absent in this case since
petitioners did not receive any of the
funds of BATELEC II as such.
While
petitioners, as directors of BATELEC II, may be said to be vested with control
over how the cooperative spends its funds,[61] the same cannot be
considered as receipt and possession of such funds under Article 315(1)(b) of
the RPC. This is so because petitioners—even in their capacities as directors
of BATELEC—do not acquire juridical possession of the funds of the cooperative.
Juridical
possession is the type of possession that is acquired by the transferee of a
thing when he receives the same under the circumstances mentioned in Article
315(1)(b) of the RPC.[62] When juridical possession is acquired, the
transferee obtains such right over the thing that he can set up even against
its owner.[63] This is what petitioners lack.
Petitioners,
despite their collective authority as directors to authorize expenditures for
BATELEC II, do not have juridical possession over the funds of the cooperative.
They simply do not have any right over such funds that they can set up against
BATELEC II.
Clearly,
petitioners cannot be considered to have received BATELEC II funds under the
circumstances mentioned in Article 315(1)(b) of the RPC. The first element
of estafa under the same
provision is, therefore, absent.
There is no Misappropriation or
Conversion of the Funds of BATELEC II
But
even assuming that the first element of estafa under
Article 315(1)(b) of the RPC is present in this case, a finding of probable
cause against petitioners is still bound to collapse. This is so because the
second element of estafa under
the said article is just the same non-existent.
The
second element of estafa under
Article 315(1)(b) of the RPC requires that there must be misappropriation or conversion of the money or property received by the
offender or a denial on his part of such receipt. The terms misappropriation or
conversion, in the context of the article on point, connotes "an act of using or
disposing of another's property as if it were one's own or of devoting it to a
purpose or use different from that agreed upon."[64] This element was
not established in this case:
First. In approving the ITI and Supertrac contracts, the
petitioners merely exercised their prerogative—as directors of the
cooperative—to enter into contracts that they deem to be beneficial for BATELEC
II.[65] Though the petitioners may have committed
certain lapses, errors in judgment or even violations of NEA guidelines in
making such approval, these do not have the effect of rendering the contracts
with ITI and Supertrac illegal or void ab initio. Hence, from a strictly legal perspective, any
payment made by BATELEC II pursuant to such contracts—backed as they were by
the proper board approvals[66]—cannot per se be deemed a misappropriation or conversion
of the cooperative's funds.
Second. Manalo et al. presented absolutely
no evidence that the funds of BATELEC II were not spent in accordance with the ITI and Supertrac
contracts as approved by the petitioners. In other words, there was no proof
that the funds of the cooperative had been paid to persons or for purposes
other than those to whom and for which the said funds ought to be paid under
the contracts. As the evidence stands, no one but ITI and Supertrac received
BATELEC II funds.
Third. Moreover, the absolution of both Trinidad and Bangayan—on the
ground that they were not in conspiracy with the petitioners—greatly undermines
any potential inference of misappropriation or conversion on the part of the
petitioners. It negates the possibility that petitioners could have used the
ITI and Supertrac contracts to embezzle funds from the cooperative. More significantly,
it indirectly proves petitioners' good faith in approving the ITI and Supertrac
contracts.
Verily,
petitioners cannot be considered to have misappropriated or converted BATELEC
II funds. The second element of estafa under
the same provision is, therefore, nil.
Without Misappropriation or Conversion,
Any Prejudice Caused Upon BATELEC II
May Only Give Rise to Civil Liability
Without
proof of misappropriation or conversion, the finding that petitioners may have
committed the crime of estafa under
Article 315(1)(b), much less of syndicated estafa,
obviously, cannot hold. As we have seen, the evidence of Manalo et al. only tends to establish that petitioners have
committed various lapses and irregularities in approving the ITI and Supertrac
contracts and that such lapses and irregularities, in turn, caused some
prejudice to BATELEC II. Such evidence, by itself, is certainly not enough for
purposes of criminal prosecution for estafa.
Given
the evidence at hand, petitioners, at most, may only be held civilly liable for
the prejudice sustained by BATELEC II[67] subject to
defenses petitioners may raise.
IV
We
thus come to the disposition of this case.
We
hold that the CA erred when it found that the DOJ Secretary did not commit
grave abuse of discretion in issuing 28 July 2009 resolution in I.S. Nos.
07-0552. In view of the absolute dearth of evidence supporting the finding of
probable cause against petitioners, we indeed find that the said resolution had
been the product of such abuse of discretion. Consequently, we must set aside
the decision of the CA and direct the incumbent Secretary of Justice to
withdraw the informations filed against petitioners pursuant to the 28 July
2009 resolution.
The
warrants of arrest issued against petitioners in Criminal Case Nos. 0503-2007
and 0504-2007 must too be lifted, as a necessary consequence of the invalidity
of the indictment against them.
WHEREFORE, premises considered, the petition is hereby GRANTED. We hereby render a decision as follows:
1.
REVERSING and SETTING ASIDE the decision dated 18 February 2010 and
resolution dated 16 July 2010 of the Court of Appeals (CA) in CA-G.R. SP No.
110838;
2.
SETTING ASIDE the
resolution dated 28 July 2009 of the Secretary of the Department of Justice in
I.S. Nos. 07-0552 to 0553 and DIRECTING the Secretary of Justice to issue a resolution dismissing
the criminal complaint docketed as I.S. Nos. 07-0552 to 0553 before the Office
of City Prosecutor of Lipa City for lack of probable cause and lack of merit;
3.
DIRECTING the
incumbent Secretary of the Department of Justice to file motion to dismiss the
informations in Criminal Case Nos. 0503-2007 and 0504-2007 with the Regional
Trial Court of Lipa City, Branch 12, and to ask for the LIFTING of the warrants of arrest issued against
petitioners pursuant to the 7 October 2009 Order of the said RTC of Lipa City.
Let
a copy of this Decision be served to the Regional Trial Court, Branch 12, of
Lipa City for its consideration.
SO ORDERED.
Velasco, Jr., (Chairperson), Leonardo-De Castro,[*] Reyes and Jardeleza, JJ., concur.
December 16, 2016
NOTICE OF JUDGMENT
Sirs
/ Mesdames:
Please
take notice that on December 9, 2016 a Decision, copy
attached hereto, was rendered by the Supreme Court in the above-entitled case,
the original of which was received by this Office on December 16, 2016 at 11:00
a.m.
|
|
Very
truly yours, (SGD)
WILFREDO V. LAPITAN |
[*] Designated as Additional Member in lieu of Associate Justice
Diosdado M. Peralta per Raffle dated December 7, 2016.
[1] Rollo, pp. 12-83. The appeal was filed as a Petition
for Review on Certiorari under Rule 45 of the Rules of Court.
[2] Id. at 318-337. The
decision was penned by Associate Justice Florito S. Macalino for the Eleventh
Division of the Court of Appeals with Associate Justices Hakim S. Abdulwahid
and Normandie B. Pizarro, concurring.
[3] Id. at 339-340.
The resolution was penned by Associate Justice Florito S. Macalino for the
Former Eleventh Division of the Court of Appeals with Associate Justices Hakim
S. Abdulwahid and Normandie B. Pizarro, concurring.
[4] Id. at 422-425,
422, see Articles
of Incorporation of BATELEC II.
[5] Now known as Smart
Technologies, Incorporated.
[6] See rollo, p. 320. Payable in twenty-two (22) monthly
installments at P3,500,000.00 for the first 21 months and P1,500,000.00 for the
22nd month.
[7] Rollo, p. 323.
[8] Id. at 511-549;
the 2004 Audit Report issued
by the NEA on 18 March 2005. The reports contains the results of the audit it
conducted on the accounts and transactions of BATELEC II for the period of 1
April2001 to 30 September 2004.
Rollo, pp. 511-549; excerpts
of the audit is found in the NEA decision dated 5 October 2006 in NEA ADM. Case
No. 01-05-05.
[9] Id.
[10] CA rollo, pp. 171-176, 176; NEA Bulletin No. 35 dated 18
June 1990.
[11] The audit report
identified the Star Motors Corporation.
[12] Rollo, pp. 506-510.
[13] The other
directors of BATELEC II who were charged in the administrative complaint were
Ruben Calinisan, Gerardo Hernandez, Ireneo Montecer, Tirso M. Ramos, Jr.
[14] Via then
NEA Administrator Edita S. Bueno
[15] CA rollo, p. 740.
[16] Namely, private
respondent Ruperto H. Manalo, Atty. Natalio M. Panganiban, Mr. Leovino O.
Hidalgo, Mr. Gonzalo O. Bantugon, Mr. Adrian G. Ramos, Mr. Dakila P. Atienza
and Mr. Michael Angelo C. Rivera.
[17] CA rollo, p. 741; via BATELEC II Board Resolution No. 001, s.
2006.
Petitioners
would challenged the 9 October 2006 order of the NEA via a petition for certiorari with the CA. Such petition was dismissed by the
CA through its decision dated 15 December 2006. Undeterred, petitioners
appealed the CA's decision before this Court. This appeal was docketed as G.R.
No. 175736.
On
12 April 2016, we issued a decision in G.R. No. 175736 denying petitioners'
appeal and affirming the CA's decision as well as the NEA order. (See G.R. No. 175736, 12 April 2016)
[18] Namely, private
respondents Lourdes C. Cruz, Virginia B. Borja, Edgar A. de Guzman and Rodulfo
B. Gelas (Canlas, in other parts of the records).
[19] Rollo, pp. 85-103, 89; see Resolution of the OCP dated 9 November
2007 in I.S. Nos. 07-0552 to 0553.
[20] Thru State
Prosecutors Florencio D. Dela Cruz, Jr. and Nolibien N. Quiambao who were
designated as acting city prosecutors of Lipa City under Department Order No.
713 dated 23 August 2007 of the Department of Justice.
[21] Id. at 85-103.
[22] Id. at 101.
[23] Rollo, pp. 607-611, 659-661; both dated 9 November
2007.
[24] Then, Secretary
Raul M. Gonzales.
[25] CA rollo, pp. 96-102; dated 26 November 2007.
[26] Rollo, pp. I 36-161, 159; see Resolution of the DOJ Secretary dated 26
November 2008 in I.S. Nos. 07-0552 to 0553.
[27] Id. at 131-161.
[28] Id. at 160.
[29] Id. at 690-693.
[30] Id.
[31] Id. at 694-704.
[32] Id. at 208-211.
[33] Id.
[34] Id. at 729-732.
[35] Id. at 733-737.
[36] Then Acting
Secretary Agnes VST Devanadera.
[37] Rollo, pp. 756-777.
[38] Id. at 778-779;
petitioners also filed their motion for reconsideration, but the same was
denied by the DOJ Secretary via a resolution dated 28 September 2009.
[39] See CA rollo, pp. 363-367.
[40] Rollo, pp. 420-421.
[41] Id. at 307-311 and
312-317; Bangayan's motion for reconsideration was granted via a resolution dated 12 October 2009;
Trinidad's motion for reconsideration was granted via a resolution dated 12
November 2009.
[42] CA rollo, pp. 7-51.
[43] Id.
[44] Rollo, pp. 318-337.
[45] Id. at 339-340.
[46] Supra note
41. See further rollo, pp. 690-693 and 208-211.
[47] REVISED PENAL CODE
(RPC) or Act No. 3815.
[48] Corpuz v. People of the
Philippines, G.R. No. 180016, 29
April 2014, 724 SCRA 1, 31-32.
[49] G.R. No. 106357, 3
September 1988.
[50] This is equally
true in the case of other forms of swindling under Article 316 of the RPC,
which is only punishable by arresto mayor in its minimum to medium periods and a fine of not less tha
the value of the damage caused but not more three times such value.
[51] Article 315 of the
RPC.
[52] 704 Phil. 463
(2013).
[53] Id. at 473.
[54] Section 1 of PD
No. 1689.
[55] 365 Phil. 531, 543
(1999).
[56] See Section 1 of PD No. 1689 in relation
to Galvez v. Court of Appeals, supra note 52.
[57] Supra note 54.
[58] Supra note 52 at
474.
[59] Rollo, pp. 446, 482; see Comment of private respondent Manalo.
[60] Cf. People v.
Romero, supra note 55 at 539 and People v. Menil, Jr., 394 Phil. 433, 441 (2000). The second
paragraph of Section 1 of PD No. 1689 will only apply if the group of swindlers
does not meet the first standard but satisfies the second and third standards
of Galvez.
[61] Section 24 of PD
No. 269, as amended, provides:
SECTION 24. Board of Directors.-
(a)
The Management of a Cooperative shall be vested in its Board, subject to the
supervision and control of NEA which shall have the right to be represented and
to participate in all Board meetings and deliberations and to approve all
policies and resolutions.
xxxx
[62] 387 Phil. 15, 25
(2000).
[63] Id. at 26.
[64] 700 Phil. 632, 640
(2012).
[65] Supra note 61.
[66] CA rollo, pp. 355-356; BATELEC II Board Resolution No.
04-067 for the ITI contract and BATELEC II Board Resolution No. 04-111 for the
Supertrac contract.
[67] 34 Phil. 227
(1916).
EN BANC
[ G.R. No. 173473, December 17, 2008 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. BETH
TEMPORADA, APPELLANT.
DECISION
YNARES-SANTIAGO,
J.:
Before us for review is the February 24, 2006
Decision[1] of the Court of Appeals (CA), affirming
with modification the May 14, 2004 Decision[2] of the Regional
Trial Court (RTC) of Manila, Branch 33, convicting accused-appellant Beth
Temporada of the crime of large scale illegal recruitment, or violation of
Article 38 of the Labor Code, as amended, and five (5) counts of estafa under Article 315, par. (2)(a)
of the Revised Penal Code (RPC).
The antecedents, as found by the appellate court, are as follows:
From September 2001 to January 2002, accused
Rosemarie "Baby" Robles, Bernadette Miranda, Nenita Catacotan and
Jojo Resco and appellant Beth Temporada, all employees of the Alternative
Travel and Tours Corporation (ATTC), recruited and promised overseas
employment, for a fee, to complainants Rogelio Legaspi, Jr. as technician in
Singapore, and Soledad Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as
factory workers in Hongkong. The accused and appellant were then holding office
at Dela Rosa Street, Makati City but eventually transferred business to
Discovery Plaza, Ermita, Manila. After complainants had submitted all the
requirements consisting of their respective application forms, passports, NBI
clearances and medical certificates, the accused and appellant, on different
dates, collected and received from them placement fees in various amounts, viz:
a) from Rogelio Legaspi, Jr. – 57,600.00; b) from Dennis Dimaano – P66,520.00;
c) from Evelyn Estacio – P88,520.00; d) from Soledad Atle – P69,520.00 and e)
from Luz Minkay – P69,520.00. As none of them was able to leave nor recover the
amounts they had paid, complainant lodged separate criminal complaints against
accused and appellant before the City Prosecutor of Manila. On November 29,
2002, Assistant City Prosecutor Restituto Mangalindan, Jr. filed six (6)
Informations against the accused and appellant, one for Illegal Recruitment in
Large Scale under Article 38 (a) of the Labor Code as amended, and the rest for
five (5) counts of estafa under
Article 315 paragraph 2 (a) of the Revised Penal Code.
The Information for large scale illegal
recruitment reads:
Criminal Case No. 02-208371:
"The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.
That in or about and during the period comprised between the months of
September 2001 and January 2002, inclusive, in the City of Manila, Philippines,
the said accused, representing themselves to have the power and capacity to
contract, enlist and transport Filipino workers for employment abroad, did then
and there willfully, unlawfully for a fee, recruit and promise employment to
REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELEYN V. ESTACIO, SOLEDAD B. ATTE
and LUZ MINKAY without first having secured the required license from the
Department of Labor and Employment as required by law, and charge or accept
directly or indirectly from said complainant[s] the amount of PH57,600.00,
PH66,520.00, PH88,520.00, PH69,520.00, PH69,520.00, respectively, as placement
fees in consideration for their overseas employment, which amounts are in
excess of or greater than that specified in the scheduled of allowable fees
prescribed of the POEA and without reasons and without fault of the said
complainants, failed to actually deploy them and failed to reimburse them the
expenses they incurred in connection with the documentation and processing of
their papers for purposes of their deployment.
Contrary to law."
Except for the name of private complainant and
the amount involved, the five (5) Informations for estafa contain substantially
identical averments as follows:
Criminal Case No. 02-208372:
"The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.
That in or about and during the period comprised between November 23, 2001 and
January 12, 2002, inclusive, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping one another, did
then and there willfully, unlawfully and feloniously defraud ROGELIO A.
LEGASPI, JR., in the following manner, to wit: the said accused, by means of
false manifestations and fraudulent representations which they made to said
ROGELIO A. LEGASPI, JR., prior to and even simultaneous with the commission of
the fraud, to the effect that they have the power and capacity to recruit and
employ ROGELIO A. LEGASPI, JR., as technician in Singapore and could facilitate
the processing of the pertinent papers if given the necessary amount to meet
the requirements thereof, induced and succeeded in inducing said ROGELIO A.
LEGASPI, JR., to give and deliver, as in fact he gave and delivered to said
accused the amount of P57,600.00 on the strength of said manifestations and
representations said accused well knowing that the same were false and
fraudulent and were made solely for the purpose of obtaining, as in fact they
did obtain the amount of P57,600.00, which amount, once in their possession,
with intend to defraud, they willfully, unlawfully and feloniously
misappropriated, misapplied and converted the same to their own personal use
and benefit, to the damage and prejudice of said ROGELIO A. LEGASPI, JR. in the
aforesaid amount of P57,000.00 Philippine Currency.
Contrary to law."
The other four (4) Informations for estafa involve the following
complainants and amounts:
|
1. |
DENNIS T. DIMAANO |
P66,520.00 |
|
2. |
EVELYN V. ESTACIO |
P88,520.00 |
|
3. |
SOLEDAD B. ATLE |
P69,520.00 |
|
4. |
LUZ T. MINKAY |
P69,520.00[3] |
Only appellant was apprehended and brought to
trial, the other accused remained at large. Upon arraignment, appellant pleaded
not guilty and trial on the merits ensued. After joint trial, on May 14, 2004,
the RTC rendered judgment convicting appellant of all the charges:
WHEREFORE, the
prosecution having established the GUILT of accused Beth Temporada BEYOND
REASONABLE DOUBT, judgment is hereby rendered CONVICTING the said accused, as
principal of the offenses charged and she is sentenced to suffer the penalty of
LIFE IMPRISONMENT and a fine of Five Hundred Thousand Pesos (P500,000.00) for
illegal recruitment; and the indeterminate penalty of four (4) years and two
(2) months of prision correctional as minimum, to nine (9) years and one (1)
day of prision mayor, as maximum for the estafa committed
against complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four
(4) years and two (2) months of prision correctional as minimum to ten (10)
years and one day of prision mayor as maximum each for the estafas committed against complainants,
Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the indeterminate
penalty of four (4) years and two (2) months of prision correctional as
minimum, to eleven (11) years and one (1) day of prision mayor as maximum for
the estafa committed
against Evelyn Estacio.
The accused is also ordered to pay jointly and severally the complainants
actual damages as follows:
|
1. |
Rogelio A. Legaspi Jr. |
P57,600.00 |
|
2. |
Dennis T. Dimaano |
66,520.00 |
|
3. |
Evelyn V. Estacio |
88,520.00 |
|
4. |
Soledad B. Atte |
66,520.00 |
|
5. |
Luz T. Minkay |
69,520.00 |
SO ORDERED.[4]
In accordance with the Court's ruling in People
v. Mateo,[5] this case was referred to the CA for
intermediate review. On February 24, 2006, the CA affirmed with modification
the Decision of the RTC:
WHEREFORE, with MODIFICATION to the effect that
in Criminal Cases Nos. 02-208373, 02-208375, & 02-208376, appellant is
sentenced to suffer the indeterminate penalty of six (6) years of prision
correccional maximum, as minimum, to ten (10) years and one (1) day
of prision mayor maximum, as maximum; and in Criminal
Case No. 02-208374, she is sentenced to suffer the indeterminate penalty of
eight (8) years and one (1) day of prision mayor medium, as
minimum, to twelve (12) years and one (1) day of reclusion temporal
minimum, as maximum, the appealed decision is AFFIRMED in all other
respects.[6]
Before this Court, appellant ascribes the lone
error that the trial court gravely erred in finding her guilty of illegal
recruitment and five (5) counts of estafa despite
the insufficiency of the evidence for the prosecution.
We affirm the Decision of the CA, except as to the indeterminate penalties
imposed for the five (5) counts of estafa.
Article 13(b) of the Labor Code defines recruitment and placement thusly:
ART. 13. Definitions. – x x x
(b) "Recruitment and placement" refers to
any act of canvassing, enlisting, contracting, transporting, utilizing, hiring
or procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or not:
Provided, That any person or entity which, in any manner, offers or promises
for a fee, employment to two or more persons shall be deemed engaged in
recruitment and placement.
To constitute illegal recruitment in large
scale, three (3) elements must concur: (a) the offender has no valid license or
authority required by law to enable him to lawfully engage in recruitment and
placement of workers; (b) the offender undertakes any of the activities within
the meaning of "recruitment and placement" under Article 13(b) of the
Labor Code, or any of the prohibited practices enumerated under Article 34 of
the said Code (now Section 6 of R.A. No. 8042); and, (c) the offender committed
the same against three (3) or more persons, individually or as a group.[7]
In the case at bar, the foregoing elements are present. Appellant, in
conspiracy with her co-accused, misrepresented to have the power, influence,
authority and business to obtain overseas employment upon payment of a
placement fee which was duly collected from complainants Rogelio Legaspi,
Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz Minkay. Further, the
certification[8] issued by the Philippine Overseas
Employment Administration (POEA) and the testimony of Ann Abastra Abas, a
representative of said government agency, established that appellant and her
co-accused did not possess any authority or license to recruit workers for
overseas employment. And, since there were five (5) victims, the trial court
correctly found appellant liable for illegal recruitment in large scale.
Appellant insists that she was merely an employee of ATTC and was just
"echoing the requirement of her employer." She further argues that
the prosecution failed to prove that she was aware of the latter's illegal
activities and that she actively participated therein. In essence, she
controverts the factual findings of the lower courts.
The contention is untenable.
An employee of a company or corporation engaged in illegal recruitment may be
held liable as principal, together with his employer, if it is shown that he
actively and consciously participated in illegal recruitment.[9] Appellant actively took part in the illegal recruitment of
private complainants. Rogelio Legaspi testified that after introducing herself
as the General Manager of ATTC, appellant persuaded him to apply as a
technician in Singapore and assured him that there was a job market therefor.
In addition to the placement fee of P35,000.00 which he paid to accused
Bernadette Miranda, he also handed the amount of P10,000.00 to appellant who,
in turn, issued him a receipt for the total amount of P45,000.00. Upon the
other hand, Soledad Atle and Luz Minkay, who applied as factory workers in
Hongkong through co-accused, Emily Salagonos, declared that it was appellant
who briefed them on the requirements for the processing of their application,
and assured them and Dennis Dimaano of immediate deployment for jobs abroad.
For her part, Evelyn Estacio testified that aside from the placement fee of
P40,000.00 that she paid to co-accused "Baby" Robles in connection
with her purported overseas employment, she also gave appellant P10,000.00 for
which she was issued a receipt for the amount of P5,000.00.
The totality of the evidence, thus, established that appellant acted as an
indispensable participant and effective collaborator of her co-accused in the
illegal recruitment of complainants. As aptly found by the CA:
Without doubt, all the acts of appellant,
consisting of introducing herself to complainants as general manager of ATTC,
interviewing and entertaining them, briefing them on the requirements for
deployment and assuring them that they could leave immediately if they paid the
required amounts, unerringly show unity of purpose with those of her co-accused
in their scheme to defraud private complainants through false promises of jobs
abroad. There being conspiracy, appellant shall be equally liable for the acts
of her co-accused even if she herself did not personally reap the fruits of
their execution. We quote with approval the trial court's findings on the
matter:
"xxx It is clear that said accused
conspired with her co-accused Rosemarie "Baby" Robles, Bernadette M.
Miranda, Nenita Catacotan, and Jojo Resco in convincing complainants xxx to
apply for overseas jobs and giving complainants Soledad Atle, Luz Minkay and
Dennis Dimaano guarantee that they would be hired as factory workers in
Hongkong, complainant Rogelio Legaspi, as Technician in Singapore and Evelyn
Estacio as quality controller in a factory in Hongkong, despite the fact that
the accused was not licensed to do so.
It should be noted that all the accused were connected with the Alternative
Travel and Tours Corporation (ATTC). Accused Beth Temporada introduced herself
as ATTC's General Manager. Saod accused was also the one who received the
P10,000.00 given by complainant Rogelio Legaspi, Jr. and the P10,000.00 given
by complainant Evelyn Estacio as payment for their visa and plane ticket,
respectively."[10]
Consequently, the
defense of appellant that she was not aware of the illegal nature of the
activities of her co-accused cannot be sustained. Besides, even assuming arguendo that
appellant was indeed unaware of the illegal nature of said activities, the same
is hardly a defense in the prosecution for illegal recruitment. Under The
Migrant Workers and Overseas Filipinos Act of 1995, a special law, the
crime of illegal recruitment in large scale is malum prohibitum and
not malum in se.[11] Thus, the
criminal intent of the accused is not necessary and the fact alone that the
accused violated the law warrants her conviction.[12]
In the instant case, we find no reason to depart from the rule that findings of
fact of the trial court on the credibility of witnesses and their testimonies
are generally accorded great respect by an appellate court. The assessment of
credibility of witnesses is a matter best left to the trial court because it is
in the position to observe that elusive and incommunicable evidence of the
witnesses' deportment on the stand while testifying, which opportunity is denied
to the appellate courts.[13] Further, there is no showing of any
ill-motive on the part of the prosecution witnesses in testifying against
appellant. Absent such improper motive, the presumption is that they were not
so actuated and their testimony is entitled to full weight and credit.
Section 7(b) of R.A. No. 8042 prescribes the penalty of life imprisonment and a
fine of not less than P500,000.00 nor more than P1,000,000.00 for the crime of
illegal recruitment in large scale or by a syndicate. The trial court,
therefore, properly meted the penalty of life imprisonment and a fine of
P500,000.00 on the appellant.
Anent the conviction of appellant for five (5) counts of estafa, we, likewise, affirm the same.
Well-settled is the rule that a person convicted for illegal recruitment under
the Labor Code may, for the same acts, be separately convicted for estafa under Article 315, par. 2(a)
of the RPC.[14] The elements of estafa are: (1) the accused defrauded
another by abuse of confidence or by means of deceit; and (2) the offended
party or a third party suffered damage or prejudice capable of pecuniary
estimation.[15] The same evidence proving appellant's
criminal liability for illegal recruitment also established her liability
for estafa. As previously
discussed, appellant together with her co-accused defrauded complainants into
believing that they had the authority and capability to send complainants for
overseas employment. Because of these assurances, complainants parted with
their hard-earned money in exchange for the promise of future work abroad.
However, the promised overseas employment never materialized and neither were
the complainants able to recover their money.
While we affirm the conviction for the five (5) counts of estafa, we find, however, that the CA
erroneously computed the indeterminate penalties therefor. The CA deviated from
the doctrine laid down in People v. Gabres;[16] hence its decision should be reversed with respect to the
indeterminate penalties it imposed. The reversal of the appellate court's
Decision on this point does not, however, wholly reinstate the indeterminate
penalties imposed by the trial court because the maximum terms, as determined
by the latter, were erroneously computed and must necessarily be rectified.
The prescribed penalty for estafa under
Article 315, par. 2(d) of the RPC, when the amount defrauded exceeds
P22,000.00, is prisión correccional maximum to prisión
mayor minimum. The minimum term is taken from the penalty next lower
or anywhere within prisión correccional minimum and medium (i.e.,
from 6 months and 1 day to 4 years and 2 months). Consequently, the RTC
correctly fixed the minimum term for the five estafa cases at 4 years and 2 months of prisión
correccional since this is within the range of prisión
correccional minimum and medium.
On the other hand, the maximum term is taken from the prescribed penalty
of prisión correccional maximum to prisión mayor minimum
in its maximum period, adding 1 year of imprisonment for every P10,000.00 in
excess of P22,000.00, provided that the total penalty shall not exceed 20
years. However, the maximum period of the prescribed penalty of prisión
correccional maximum to prisión mayor minimum is
not prisión mayor minimum as apparently assumed by the RTC. To
compute the maximum period of the prescribed penalty, prisión
correccional maximum to prisión mayor minimum should
be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 65[17] of the RPC. Following this procedure, the maximum period
of prisión correccional maximum to prisión mayor minimum
is from 6 years, 8 months and 21 days to 8 years.[18] The incremental penalty, when proper, shall thus be added
to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of
the court.[19]
In computing the incremental penalty, the amount defrauded shall be subtracted
by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction
of a year shall be discarded as was done starting with the case of People
v. Pabalan[20] in consonance with the settled rule that
penal laws shall be construed liberally in favor of the accused. The doctrine
enunciated in People v. Benemerito[21] insofar as the fraction of a year was utilized in computing
the total incremental penalty should, thus, be modified. In accordance with the
above procedure, the maximum term of the indeterminate sentences imposed by the
RTC should be as follows:
In Criminal Case No. 02-208372, where the amount defrauded was P57,600.00, the
RTC sentenced the accused to an indeterminate penalty of 4 years and 2 months
of prisión correccional as minimum, to 9 years and 1 day
of prisión mayor as maximum. Since the amount defrauded
exceeds P22,000.00 by P35,600.00, 3 years shall be added to the maximum period
of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21
days to 8 years, at the discretion of the court). The lowest maximum term,
therefore, that can be validly imposed is 9 years, 8 months and 21 days
of prisión mayor, and not 9 years and 1 day of prisión
mayor.
In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the amounts
defrauded were P66,520.00, P69,520.00, and P69,520.00, respectively, the
accused was sentenced to an indeterminate penalty of 4 years and 2 months
of prisión correccional as minimum, to 10 years and 1 day
of prisión mayor as maximum for each of the aforesaid
three estafa cases.
Since the amounts defrauded exceed P22,000.00 by P44,520.00, P47,520.00, and
P47,520.00, respectively, 4 years shall be added to the maximum period of the
prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to
8 years, at the discretion of the court). The lowest maximum term, therefore,
that can be validly imposed is 10 years, 8 months and 21 days of prisión
mayor, and not 10 years and 1 day of prisión mayor.
Finally, in Criminal Case No. 02-208374, where the amount defrauded was
P88,520.00, the accused was sentenced to an indeterminate penalty of 4 years
and 2 months of prisión correccional as minimum, to 11 years
and 1 day of prisión mayor as maximum. Since the amount
defrauded exceeds P22,000.00 by P66,520.00, 6 years shall be added to the
maximum period of the prescribed penalty (or added to anywhere from 6 years, 8
months and 21 days to 8 years, at the discretion of the court). The lowest
maximum term, therefore, that can be validly imposed is 12 years, 8 months and
21 days of reclusión temporal, and not 11 years and 1 day of prisión
mayor.
Response to the dissent.
In the computation of the indeterminate sentence for estafa under Article 315, par. 2(a)
of the Revised Penal Code (RPC), the Court has consistently followed
the doctrine espoused in Pabalan and more fully explained in Gabres. The
dissent argues that Gabres should be reexamined and abandoned.
We sustain Gabres.
I.
The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T.
Reyes, i.e., the maximum term shall first be computed by
applying the incremental penalty rule, and thereafter the minimum term shall be
determined by descending one degree down the scale of penalties from the
maximum term, is a novel but erroneous interpretation of the ISL in relation to
Article 315, par. 2(a) of the RPC. Under this interpretation, it is not clear
how the maximum and minimum terms shall be computed. Moreover, the legal
justification therefor is not clear because the meaning of the terms
"penalty," "prescribed penalty," "penalty actually
imposed," "minimum term," "maximum term,"
"penalty next lower in degree," and "one degree down the scale
of penalties" are not properly set out and are, at times, used
interchangeably, loosely and erroneously.
For purposes of this discussion, it is necessary to first clarify the meaning
of certain terms in the sense that they will be used from here on. Later, these
terms shall be aligned to what the dissent appears to be proposing in order to
clearly address the points raised by the dissent.
The RPC provides for an initial penalty as a general prescription for the felonies
defined therein which consists of a range of period of time. This is what
is referred to as the "prescribed penalty." For instance,
under Article 249[22] of the RPC, the prescribed penalty for
homicide is reclusión temporal which ranges from 12 years and
1 day to 20 years of imprisonment. Further, the Code provides for attending or
modifying circumstances which when present in the commission of a felony
affects the computation of the penalty to be imposed on a convict. This
penalty, as thus modified, is referred to as the "imposable penalty."
In the case of homicide which is committed with one ordinary aggravating
circumstance and no mitigating circumstances, the imposable penalty under the
RPC shall be the prescribed penalty in its maximum period. From this imposable
penalty, the court chooses a single fixed penalty (also called a straight
penalty) which is the "penalty actually imposed" on a
convict, i.e., the prison term he has to serve.
Concretely, in U.S. v. Saadlucap,[23] a pre-ISL case, the accused was found guilty of
homicide with a prescribed penalty of reclusión temporal. Since
there was one ordinary aggravating circumstance and no mitigating circumstances
in this case, the imposable penalty is reclusión temporal in
its maximum period, i.e., from 17 years, 4 months and 1 day to 20
years. The court then had the discretion to impose any prison term provided it
is within said period, so that the penalty actually imposed on the accused was
set at 17 years, 4 months and 1 day of reclusión temporal,[24] which is a single fixed penalty, with no minimum or maximum
term.
With the passage of the ISL, the law created a prison term which
consists of a minimum and maximum term called the indeterminate sentence.[25] Section 1 of the ISL provides —
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of said Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; x x x.
Thus, the maximum term
is that which, in view of the attending circumstances, could be properly
imposed under the RPC. In other words, the penalty actually imposed
under the pre-ISL regime became the maximum term under the ISL regime. Upon
the other hand, the minimum term shall be within the range of the penalty next
lower to the prescribed penalty. To illustrate, if the case of Saadlucap was
decided under the ISL regime, then the maximum term would be 17 years, 4 months
and 1 day of reclusión temporal and the minimum term could be
anywhere within the range of prisión mayor (6 years and 1 day
to 12 years) which is the penalty next lower to reclusión temporal.
Consequently, an indeterminate sentence of 10 years of prisión
mayor as minimum to 17 years, 4 months and 1 day of reclusión
temporal as maximum could have possibly been imposed.
If we use the formula as proposed by the dissent, i.e., to
compute the minimum term based on the maximum term after the attending
or modifying circumstances are considered, the basis for computing the
minimum term, under this interpretation, is the imposable penalty[26] as hereinabove defined. This interpretation is at odds with
Section 1 of the ISL which clearly states that the minimum of the indeterminate
sentence shall be "within the range of the penalty next lower to that prescribed
by the Code for the offense." Consequently, the basis for fixing the
minimum term is the prescribed penalty,[27] and not the imposable penalty.
In People v. Gonzales,[28] the Court held
that the minimum term must be based on the penalty prescribed by the Code for
the offense "without regard to circumstances modifying criminal
liability."[29] The Gonzales' ruling that
the minimum term must be based on the prescribed penalty "without regard
to circumstances modifying criminal liability" is only a restatement of
Section 1 of the ISL that the minimum term shall be taken from within the range
of the penalty next lower to the prescribed penalty (and from nowhere else).[30]
Further, the dissent proceeds from the erroneous premise that its so-called
"regular formula" has generally been followed in applying the ISL. To
reiterate, according to the dissent, the "regular formula" is
accomplished by first determining the maximum term after considering all the
attending circumstances; thereafter, the minimum term is arrived at by going
one degree down the scale from the maximum term. As previously discussed, this
essentially means, using the terms as earlier defined, that the minimum term
shall be taken from the penalty next lower to the imposable penalty (and not
the prescribed penalty.) In more concrete terms and using the previous example
of homicide with one ordinary aggravating circumstance, this would mean that
the minimum term for homicide will no longer be based on reclusión
temporal (i.e., the prescribed penalty for homicide) but reclusión
temporal in its maximum period (i.e., the imposable penalty for
homicide with one ordinary aggravating circumstance) so much so that the
minimum term shall be taken from reclusión temporal in its
medium period (and no longer from prisión mayor) because this
is the penalty next lower to reclusión temporal in its maximum
period. The penalty from which the minimum term is taken is, thus,
significantly increased. From this example, it is not difficult to
discern why this interpretation radically departs from how the ISL has
generally been applied by this Court. The dissent's "regular
formula" is, therefore, anything but regular.
In fine, the "regular formula" espoused by the dissent deviates from
the ISL and established jurisprudence and is, thus, tantamount to judicial
legislation.
II.
There is no absurdity or injustice in fixing or "stagnating" the
minimum term within the range of prisión correccional minimum
and medium (i.e., from 6 months and 1 day to 4 years and 2 months).
Preliminarily, it must be emphasized that the minimum term taken from the
aforementioned range of penalty need not be the same for every case of estafa when the amount defrauded
exceeds P12,000.00. In People v. Ducosin,[31] the Court provided some guidelines in imposing the minimum
term from the range of the penalty next lower to the prescribed penalty:
We come now to determine the "minimum
imprisonment period" referred to in Act No. 4103. Section 1 of said Act
provides that this "minimum which shall not be less than the minimum
imprisonment period of the penalty next lower to that prescribed by said Code
for the offense."[32] We are here upon new ground. It is in
determining the "minimum" penalty that Act No. 4103 confers upon the
courts in the fixing of penalties the widest discretion that the courts have
ever had. The determination of the "minimum" penalty presents two
aspects: first, the more or less mechanical determination of the extreme limits
of the minimum imprisonment period; and second, the broad question of the
factors and circumstances that should guide the discretion of the court in
fixing the minimum penalty within the ascertained limits.
x x x x
We come now to the second aspect of the determination of the minimum penalty,
namely, the considerations which should guide the court in fixing the term or
duration of the minimum period of imprisonment. Keeping in mind the basic
purpose of the Indeterminate Sentence Law "to uplift and redeem valuable
human material, and prevent unnecessary and excessive deprivation of personal
liberty and economic usefulness" (Message of the Governor-General,
Official Gazette No. 92, vol. XXXI, August 3, 1933), it is necessary to
consider the criminal, first, as an individual and, second, as a member of
society. This opens up an almost limitless field of investigation and study
which it is the duty of the court to explore in each case as far as is humanly
possible, with the end in view that penalties shall not be standardized but
fitted as far as is possible to the individual, with due regard to the
imperative necessity of protecting the social order.
Considering the criminal as an individual, some of the factors that should be
considered are: (1) His age, especially with reference to extreme youth or old
age; (2) his general health and physical condition; (3) his mentality, heredity
and personal habits; (4) his previous conduct, environment and mode of life
(and criminal record if any); (5) his previous education, both intellectual and
moral; (6) his proclivities and aptitudes for usefulness or injury to society;
(7) his demeanor during trial and his attitude with regard to the crime
committed; (8) the manner and circumstances in which the crime was committed;
(9) the gravity of the offense (note that section 2 of Act No. 4103 excepts
certain grave crimes — this should be kept in mind in assessing the minimum
penalties for analogous crimes).
In considering the criminal as a member of society, his relationship, first,
toward his dependents, family and associates and their relationship with him,
and second, his relationship towards society at large and the State are
important factors. The State is concerned not only in the imperative necessity
of protecting the social organization against the criminal acts of destructive
individuals but also in redeeming the individual for economic usefulness and
other social ends. In a word, the Indeterminate Sentence Law aims to
individualize the administration of our criminal law to a degree not heretofore
known in these Islands. With the foregoing principles in mind as guides, the
courts can give full effect to the beneficent intention of the Legislature.[33]
Admittedly, it is
possible that the court, upon application of the guidelines in Ducosin,
will impose the same minimum term to one who commits an estafa involving P13,000.00 and
another involving P130 million. In fact, to a lesser degree, this is what
happened in the instant case where the trial court sentenced the accused to the
same minimum term of 4 years and 2 months of prisión correccional in
Criminal Case Nos. 02-208372, 02-208373, 02-208375, 02-208376, and 02-208374
where the amounts defrauded were P57,600.00, P66,520.00, P69,520.00, P69,520.00
and P88,520.00, respectively. However, there is no absurdity and
injustice for two reasons.
One, while it is possible that the minimum term imposed by a court would be the
same, the maximum term would be greater for the convict who committed estafa involving P130 million (which
would be 20 years of reclusion temporal) than the convict who
swindled P13,000.00 (which could be anywhere from prisión
correccional maximum to prisión mayor minimum or from
4 years, 2 months and 1 day to 8 years).[34] Assuming that
both convicts qualify for parole after serving the same minimum term, the
convict sentenced to a higher maximum term would carry a greater
"burden" with respect to the length of parole surveillance which
he may be placed under, and the prison term to be served in
case he violates his parole as provided for in Sections 6[35] and 8[36] of the ISL. Under Section 6, the convict
shall be placed under a period of surveillance equivalent to the remaining
portion of the maximum sentence imposed upon him or until final release and
discharge by the Board of Pardon and Paroles. Further, the convict with the
higher maximum term would have to serve a longer period upon his re-commitment
in prison in case he violates his parole because he would have to serve the
remaining portion of the maximum term, unless the Board of Pardon and Paroles
shall, in its discretion, grant a new parole to the said convict as provided
for in Section 8.
Although the differences in treatment are in the nature of potential
liabilities, to this limited extent, the ISL still preserves the greater degree
of punishment in the RPC for a convict who commits estafa involving a greater amount as
compared to one who commits estafa involving
a lesser amount. Whether these differences in treatment are sufficient
in substance and gravity involves a question of wisdom and expediency of the
ISL that this Court cannot delve into.
Two, the rule which provides that the minimum term is taken from the range of
the penalty next lower to the prescribed penalty is, likewise, applicable to
other offenses punishable under the RPC. For instance, the minimum term for an
accused guilty of homicide with one generic mitigating circumstance vis-à-vis
an accused guilty of homicide with three ordinary aggravating circumstances
would both be taken from prisión mayor — the penalty next
lower to eclusion temporal. Evidently, the convict guilty of
homicide with three ordinary aggravating circumstances committed a more
perverse form of the felony. Yet it is possible that the court, after applying
the guidelines in Ducosin, will impose upon the latter the same
minimum term as the accused guilty of homicide with one generic mitigating
circumstance. This reasoning can be applied mutatis mutandis to
most of the other offenses punishable under the RPC. Should we then conclude
that the ISL creates absurd results for these offenses as well?
In fine, what is perceived as absurd and unjust is actually the intent
of the legislature to be beneficial to the convict in order to
"uplift and redeem valuable human material, and prevent unnecessary and
excessive deprivation of personal liberty and economic usefulness."[37] By the legislature's deliberate design, the range of
penalty from which the minimum term is taken remains fixed and only the range
of penalty from which the maximum term is taken changes depending on the number
and nature of the attending circumstances. Again, the reason why the
legislature elected this mode of beneficence to a convict revolves on questions
of wisdom and expediency which this Court has no power to review. The balancing
of the State's interests in deterrence and retributive justice vis-à-vis
reformation and reintegration of convicts to society through penal laws belongs
to the exclusive domain of the legislature.
III.
People v. Romero,[38] De Carlos v. Court of Appeals,[39] Salazar v. People,[40] People v.
Dinglasan[41] and, by analogy, People v. Dela
Cruz[42] do not support the formula being proposed
by the dissent.
The instant case involves a violation of Article 315, par. 2(a) of the RPC.[43] The penalty for said violation is—
ARTICLE 315. Swindling (Estafa). — Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prisión correccional in its maximum period
to prisión mayor in its minimum period, if the amount of the
fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be
termed prisión mayor or reclusión temporal, as the
case may be. x x x
In contrast, Romero, De Carlos, and Salazar involved
violations of Article 315 of the RPC as amended by Presidential Decree
(P.D.) No. 1689[44] because: (1) the funds defrauded were
contributed by stockholders or solicited by corporations/associations from the
general public, (2) the amount defrauded was greater than P100,000.00, and (3)
the estafa was not
committed by a syndicate. Section 1 of P.D. No. 1689 provides—
Sec. 1. Any person or persons who shall
commit estafa or other
forms of swindling as defined in Article 315 and 316 of the Revised Penal Code,
as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate
consisting of five or more persons formed with the intention of carrying out
the unlawful or illegal act, transaction, enterprise or scheme, and the
defraudation results in the misappropriation of money contributed by
stockholders, or members of rural banks, cooperative, "samahang
nayon(s)", or farmers association, or of funds solicited by
corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable
shall be reclusión temporal to reclusión
perpetua if the amount of the fraud exceeds 100,000 pesos. (Emphasis
supplied)
Since the prescribed penalty is reclusión
temporal to reclusión perpetua, the minimum terms were
taken from prisión mayor, which is the penalty next lower to the
prescribed penalty.[45] As can be seen, these cases involved a
different penalty structure that does not make use of the incremental
penalty rule due to the amendatory law. Thus, the comparison of these
cases with Gabres is improper.
Meanwhile, in Dinglasan, the felony committed was estafa through bouncing checks which
is punishable under Article 315 par. 2(d) of the RPC as amended by
Republic Act (RA) No. 4885[46] —
Sec. 1. Section Two,
Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight
hundred and fifteen is hereby amended to read as follows:
"Sec. 2. By means of any of the following false pretenses or fraudulent
acts executed prior to or simultaneously with the commission of the fraud:
"(d) By postdating a check, or
issuing a check in payment of an obligation when the offender had no funds in
the bank, or his funds deposited therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3) days from receipt of notice
from the bank and/or the payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act."
and P.D. No. 818[47] —
Sec. 1. Any person who
shall defraud another by means of false pretenses or fraudulent acts as defined
in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by
Republic Act No. 4885, shall be punished by:
1st. The penalty of reclusión
temporal if the amount of the fraud is over 12,000 pesos but not
exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos but the total penalty which may be
imposed shall in no case exceed thirty years. In such cases, and in connection
with the accessory penalties which may be imposed under the Revised Penal Code,
the penalty shall be termed reclusión perpetua; x x x (Emphasis
supplied)
Here, the prescribed penalty of prisión
correccional maximum to prisión mayor minimum was
increased to reclusión temporal by the amendatory law.
Consequently, the penalty next lower to reclusión temporal is prisión
mayor from which the minimum term was taken. This is the reason for
the higher minimum term in this case as compared to Gabres. In
fact, Dinglasan is consistent with Gabres—
Since the face value of Check No. 029021, for
which appellant is criminally liable for estafa,
exceeds P22,000, the penalty abovecited must be "imposed in its maximum
period, adding 1 year for each additional P10,000." Pursuant to People
vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence
shall be imposed on the accused, computed favorably to him. In this case, the
indeterminate sentence should be computed based on the maximum period of reclusión
temporal as maximum, which is from 17 years, 4 months, and 1 day to 20
years. The minimum period of the sentence should be within the penalty
next lower in degree as provided in the Revised Penal Code, i.e., prisión
mayor, which is from 6 years and 1 day to 12 years imprisonment. Considering
that the excess of the fraud committed, counting from the base of P22,000, is
only P4,400, which is less than the P10,000 stated in P.D. 818, there is no
need to add one year to the maximum penalty abovecited.[48] (Emphasis supplied)
As in Gabres, the penalty next lower
(i.e., prisión mayor) was determined without considering in
the meantime the effect of the amount defrauded in excess of P22,000.00 on the
prescribed penalty (i.e., reclusión temporal).
Finally, Dela Cruz involved a case for qualified theft. The
prescribed penalty for qualified theft is two degrees higher than simple theft.
Incidentally, the penalty structure for simple theft[49] and estafa is
similar in that both felonies (1) requires that the prescribed penalty be
imposed in its maximum period when the value of the thing stolen or the amount
defrauded, as the case may be, exceeds P22,000.00, and (2) provides for an
incremental penalty of 1 year imprisonment for every P10,000.00 in excess of
P22,000.00. It should be pointed out, however, that the prescribed penalty for
simple theft is prisión mayor minimum and medium while
in estafa it is lower
at prisión correccional maximum to prisión mayor minimum.
Being two degrees higher, the prescribed penalty for qualified theft is,
thus, reclusión temporal medium and maximum, while the minimum
term is taken from the range of prisión mayor maximum to reclusión
temporal minimum, which is the penalty next lower to reclusión
temporal medium and maximum. The penalty next lower to the prescribed
penalty is determined without first considering the amount stolen in excess of
P22,000.00 consistent with Gabres. In fact, Dela Cruz expressly
cites Gabres—
Applying the Indeterminate Sentence Law, the
minimum of the indeterminate penalty shall be anywhere within the range of the
penalty next lower in degree to that prescribed for the offense, without
first considering any modifying circumstance attendant to the commission of the
crime. Since the penalty prescribed by law is reclusión
temporal medium and maximum, the penalty next lower would be prisión
mayor in its maximum period to reclusión temporal in
its minimum period. Thus, the minimum of the indeterminate sentence shall be
anywhere within ten (10) years and one (1) day to fourteen (14) years and eight
(8) months.
The maximum of the indeterminate penalty is that which, taking into
consideration the attending circumstances, could be properly imposed under the
Revised Penal Code. Since the amount involved in the present case
exceeds P22,000.00, this should be taken as analogous to modifying
circumstances in the imposition of the maximum term of the full indeterminate
sentence, not in the initial determination of the indeterminate penalty. (citing Gabres)
Thus, the maximum term of the indeterminate penalty in this case is the maximum
period of reclusión temporal medium and maximum, which ranges
from eighteen (18) years, two (2) months, and twenty one (21) days to twenty
(20) years, as computed pursuant to Article 65, in relation to Article 64 of
the Revised Penal Code.[50] (Emphasis supplied)
Clearly, none of these
cases supports the Dissenting Opinion's thesis that the minimum term should be
computed based on the maximum term. Quite the contrary, Dinglasan and Dela
Cruz are consistent with Gabres.
IV.
The argument that the incremental penalty rule should not be considered as
analogous to a modifying circumstance stems from the erroneous interpretation
that the "attending circumstances" mentioned in Section 1 of the ISL
are limited to those modifying circumstances falling within the scope of
Articles 13 and 14 of the RPC. Section 1 of the ISL is again quoted below —
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of said Code, and
the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; x x x (Emphasis supplied)
The plain terms of the ISL show that the
legislature did not intend to limit "attending circumstances" as
referring to Articles 13 and 14 of the RPC. If the legislature intended that
the "attending circumstances" under the ISL be limited to Articles 13
and 14, then it could have simply so stated. The wording of the law clearly
permits other modifying circumstances outside of Articles 13 and 14 of the RPC
to be treated as "attending circumstances" for purposes of the
application of the ISL, such as quasi-recidivism under Article 160[51] of the RPC. Under this provision, "any person who shall
commit a felony after having been convicted by final judgment, before beginning
to serve such sentence, or while serving the same, shall be punished by the
maximum period of the penalty prescribed by law for the new felony." This
circumstance has been interpreted by the Court as a special aggravating
circumstance where the penalty actually imposed is taken from the prescribed
penalty in its maximum period without regard to any generic mitigating
circumstances.[52] Since quasi-recidivism is considered as
merely a special aggravating circumstance, the penalty next lower in degree is
computed based on the prescribed penalty without first considering said special
aggravating circumstance as exemplified in People v. Manalo[53] and People v. Balictar.[54]
The question whether the incremental penalty rule is covered within the letter
and spirit of "attending circumstances" under the ISL was answered in
the affirmative by the Court in Gabres when it ruled therein
that the incremental penalty rule is analogous to a modifying circumstance.
Article 315 of the RPC pertinently provides —
ARTICLE 315. Swindling (Estafa). — Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prisión
correccional in its maximum period to prisión mayor in
its minimum period, if the amount of the fraud is over 12,000 pesos but does
not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prisión
mayor or reclusión temporal, as the case may be. x x x
Under Gabres, prisión
correccional maximum to prisión mayor minimum is the
prescribed penalty[55] for estafa when
the amount defrauded exceeds P22,000.00. An amount defrauded in excess of
P22,000.00 is effectively considered as a special aggravating circumstance in
the sense that the penalty actually imposed shall be taken from the prescribed
penalty in its maximum period without regard to any generic mitigating
circumstances. Consequently, the penalty next lower in degree is still based on
the prescribed penalty without in the meantime considering the effect of the
amount defrauded in excess of P22,000.00.
What is unique, however, with the afore-quoted provision is that when the
amount defrauded is P32,000.00 or more, the prescribed penalty is not only
imposed in its maximum period but there is imposed an incremental penalty of 1
year imprisonment for every P10,000.00 in excess of P22,000.00, provided that
the total penalty which may be imposed shall not exceed 20 years. This
incremental penalty rule is a special rule applicable to estafa and theft. In the case
of estafa, the incremental
penalty is added to the maximum period of the prescribed penalty (or to
anywhere from 6 years, 8 months and 21 days to 8 years) at the discretion of
the court, in order to arrive at the penalty actually imposed (i.e., the
maximum term, within the context of the ISL).
This unique characteristic of the incremental penalty rule does not pose any
obstacle to interpreting it as analogous to a modifying circumstance, and,
hence, falling within the letter and spirit of "attending
circumstances" for purposes of the application of the ISL. Under the
wording of the ISL, "attending circumstances" may be reasonably
interpreted as referring to such circumstances that are applied in conjunction
with certain rules in the Code in order to determine the penalty to be actually
imposed based on the prescribed penalty of the Code for the offense. The
incremental penalty rule substantially meets this standard. The circumstance is
the amount defrauded in excess of P22,0000.00 and the incremental penalty rule
is utilized to fix the penalty actually imposed. At its core, the incremental
penalty rule is merely a mathematical formula for computing the penalty to be
actually imposed using the prescribed penalty as starting point. Thus, it
serves the same function of determining the penalty actually imposed as the
modifying circumstances under Articles 13, 14, and 160 of the RPC, although the
manner by which the former accomplishes this function differs with the latter.
For this reason, the incremental penalty rule may be considered as merely
analogous to modifying circumstances. Besides, in case of doubt as to whether
the incremental penalty rule falls within the scope of "attending circumstances"
under the ISL, the doubt should be resolved in favor of inclusion because
this interpretation is more favorable to the accused following the time-honored
principle that penal statutes are construed strictly against the State and
liberally in favor of the accused.[56] Thus, even if the
Dissenting Opinion's interpretation is gratuitously conceded as plausible, as
between Gabres and the dissent's interpretation, Gabres should
be sustained since it is the interpretation more favorable to the accused.
V.
The claim that the maximum term should only be one degree away from the minimum
term does not make sense within the meaning of "degrees"
under the RPC because the minimum and maximum terms consist of single fixed
penalties. At any rate, the point seems to be that the penalty from
which the minimum term is taken should only be one degree away from the penalty
from which the maximum term is taken.
As a general rule, the application of modifying circumstances, the majority
being generic mitigating and ordinary aggravating circumstances, does not
result to a maximum term fixed beyond the prescribed penalty. At most, the
maximum term is taken from the prescribed penalty in its maximum period. Since
the maximum term is taken from the prescribed penalty and the minimum term is
taken from the next lower penalty, then, in this limited sense, the difference
would naturally be only one degree. Concretely, in the case of homicide with
one ordinary aggravating circumstance, the maximum term is taken from reclusión
temporal in its maximum period which is within the prescribed penalty
of reclusión temporal, while the minimum term is taken from prisión
mayor which is the penalty next lower to reclusión temporal;
hence, the one-degree difference observed by the dissent.
In comparison, under the incremental penalty rule, the maximum term can exceed
the prescribed penalty. Indeed, at its extreme, the maximum term can be as high
as 20 years of reclusión temporal while the prescribed penalty
remains at prisión correccional maximum to prisión
mayor minimum, hence, the penalty next lower to the prescribed penalty
from which the minimum term is taken remains at anywhere within prisión
correccional minimum and medium, or from 6 months and 1 day to 4 years
and 2 months. In this sense, the incremental penalty rule deviates from the
afore-stated general rule.[57]
However, it is one thing to say that, generally, the penalty from
which the minimum term is taken is only one degree away from the penalty from
which the maximum term is taken, and completely another thing to claim that the
penalty from which the minimum term is taken should only be
one degree away from the penalty from which the maximum term is taken.
The one-degree difference is merely the result of a general
observation from the application of generic mitigating and ordinary
aggravating circumstances in the RPC in relation to the ISL. Nowhere does
the ISL refer to the one-degree difference as an essential requisite of an
"attending circumstance." If the application of the incremental
penalty rule deviates from the one-degree difference, this only means that the
law itself has provided for an exception thereto. Verily, the one-degree
difference is a mere consequence of the generic mitigating and
ordinary aggravating circumstances created by the legislature. The difficulty
of the dissent with the deviation from its so-called one-degree difference rule
seems to lie with the inability to view these "attending
circumstances" as mere artifacts or creations of the legislature. It does
not make sense to argue that the legislature cannot formulate "attending
circumstances" that operate differently than these generic mitigating and
ordinary aggravating circumstances, and that, expectedly, leads to
a different result from the one-degree difference—for it would be to say that
the creator can only create one specie of creatures. Further, it should be
reasonably assumed that the legislature was aware of these special
circumstances, like the incremental penalty rule or privileged mitigating
circumstances, at the time it enacted the ISL as well as the consequent effects
of such special circumstances on the application of said law. Thus, for as long
as the incremental penalty rule is consistent with the letter and spirit of
"attending circumstances" under the ISL, there is no obstacle to its
treatment as such.
VI.
Much has been said about the leniency, absurdity and unjustness of the result
under Gabres; the need to adjust the minimum term of the
indeterminate penalty to make it commensurate to the gravity of the estafa committed; the deterrence
effect of a stiffer imposition of penalties; and a host of other similar reasons
to justify the reversal of Gabres. However, all these relate to
policy considerations beyond the wording of the ISL in relation to the RPC;
considerations that if given effect essentially seek to rewrite the law in
order to conform to one notion (out of an infinite number of such notions) of
wisdom and efficacy, and, ultimately, of justice and mercy.
This Court is not the proper forum for this sort of debate. The Constitution
forbids it, and the principle of separation of powers abhors it. The Court
applies the law as it finds it and not as how it thinks the law should be. Not
too long ago in the case of People v. Veneracion,[58] this Court spoke about the dangers of allowing one's
personal beliefs to interfere with the duty to uphold the Rule of Law which,
over a decade later, once again assumes much relevance in this case:
Obedience to the rule of law forms the bedrock
of our system of justice. If judges, under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries within which they
are required by law to exercise the duties of their office, the law becomes
meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, judges
are guided by the Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.[59]
VII.
Mr. Justice Adolfo S. Azcuna proposes an interpretation of the incremental
penalty rule based on the phrases "shall be termed prisión
mayor or reclusión temporal, as the case may be" and
"for the purpose of the other provisions of this Code" found in the
last sentence of said rule, viz:
ARTICLE 315. Swindling (Estafa). — Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prisión
correccional in its maximum period to prisión mayor in
its minimum period, if the amount of the fraud is over 12,000 pesos but does
not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such cases, and in connection
with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prisión
mayor or reclusión temporal, as the case may be. x
x x (Emphasis supplied)
While this interpretation is plausible, Gabres should
still be sustained because in construing penal statutes, as between two
reasonable[60] but contradictory constructions, the one
more favorable to the accused should be upheld, which in this case is Gabres.
The reason for this rule is elucidated in an eminent treatise on statutory
construction in this wise:
It is an ancient rule of statutory construction
that penal statutes should be strictly construed against the government or
parties seeking to enforce statutory penalties and in favor of the
persons on whom penalties are sought to be imposed. This simply means that
words are given their ordinary meaning and that any reasonable doubt
about the meaning is decided in favor of anyone subjected to a criminal statute.
This canon of interpretation has been accorded the status of a constitutional
rule under principles of due process, not subject to abrogation by statute.
The rule that penal statutes should be strictly construed has several
justifications based on a concern for the rights and freedoms of accused
individuals. Strict construction can assure fairness when courts understand it
to mean that penal statutes must give a clear and unequivocal warning, in
language people generally understand, about actions that would result in
liability and the nature of potential penalties. A
number of courts have said:
... the rule that penal statutes are to be
strictly construed ... is a fundamental principle which in our judgment will
never be altered. Why? Because the lawmaking body owes the duty to citizens and
subjects of making unmistakably clear those acts for the commission of which
the citizen may lose his life or liberty. Therefore, all the canons of interpretation
which apply to civil statutes apply to criminal statutes, and in addition there
exists the canon [of strict construction] .... The burden lies on the
lawmakers, and inasmuch as it is within their power, it is their duty to
relieve the situation of all doubts.
x x x x
Additionally, strict construction protects the
individual against arbitrary discretion by officials and judges. As one judge
noted: "the courts should be particularly careful that the bulwarks of
liberty are not overthrown, in order to reach an offender who is, but perhaps
ought not to be, sheltered behind them."
But also, for a court to enforce a penalty where the legislature has not
clearly and unequivocally prescribed it could result in judicial usurpation of
the legislative function. One court has noted that the reason for the
rule is "to guard against the creation, by judicial construction, of
criminal offenses not within the contemplation of the legislature." Thus
the rule requires that before a person can be punished his case must be plainly
and unmistakably within the statute sought to be applied. And, so, where a
statute is open to more than one interpretation, it is strictly construed
against the state. Courts further rationalize this application of the rule of
strict construction on the ground that it was not the defendant in the criminal
action who caused ambiguity in the statute. Along these same lines, courts also
assert that since the state makes the laws, they should be most strongly
construed against it.[61] (Emphasis supplied; citations omitted)
Thus, in one case, where
the statute was ambiguous and permitted two reasonable interpretations, the
construction which would impose a less severe penalty was adopted.[62]
WHEREFORE, the Decision of the Court of Appeals is MODIFIED with
respect to the indeterminate penalties imposed on appellant for the five (5)
counts of estafa, to
wit:
|
|
(1) |
In Criminal Case No. 02-208372, the accused is sentenced
to an indeterminate penalty of 4 years and 2 months of prisión
correccional as minimum, to 9 years, 8 months and 21 days of prisión
mayor as maximum. |
|
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||
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(2) |
In Criminal Case Nos. 02-208373, 02-208375, and 02-208376,
the accused is sentenced to an indeterminate penalty of 4 years and 2 months
of prisión correccional as minimum, to 10 years, 8 months
and 21 days of prisión mayor as maximum for each of the
aforesaid three estafa cases. |
|
|
||
|
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(3) |
In Criminal Case No. 02-208374, the accused is sentenced
to an indeterminate penalty of 4 years and 2 months of prisión
correccional as minimum, to 12 years, 8 months and 21 days of reclusión
temporal as maximum. |
In all other respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Carpio, Austria-Martinez, Carpio Morales, Tinga, Nachura, Leonardo-De
Castro, and Brion, JJ., concur.
Puno, C.J., Pls. see Dissent.
Quisumbing, Azcuna, and Chico-Nazario, JJ., joins in the
dissent of C.J. Puno.
Corona, J., filed a Separate Opinion.
Velasco, Jr., and Reyes, JJ., see dessenting opinion.
[1] CA rollo, pp. 121-136. Penned by Associate
Justice Rebecca de Guia-Salvador, with Associate Justices Amelita G. Tolentino
and Aurora Santiago-Lagman, concurring.
[2] Penned by Hon. Reynaldo G. Ros.
[3] CA rollo, pp. 121-124.
[4] Id. at 125-26.
[5] G.R. Nos. 147678-87, July 7, 2004, 433
SCRA 640.
[6] CA rollo, p. 135.
[7] People v. Gamboa, G.R. No. 135382,
September 29, 2000, 341 SCRA 451, 458.
[8] Exhibits "A," "L," and
"L-1."
[9] People v. Cabais, G.R. No.
129070, March 16, 2001, 354 SCRA 553, 561.
[10] CA rollo, pp. 9-10.
[11] Supra note 7 at 462.
[12] Id.
[13] People v. Guambor, G.R. No. 152183,
January 22, 2004, 420 SCRA 677, 683.
[14] People v. Ballesteros, G.R. Nos.
116905-908, August 6, 2002, 386 SCRA 193, 212.
[15] Id. at 213.
[16] 335 Phil. 242 (1997).
[17] ARTICLE 65. Rule in Cases in Which
the Penalty is Not Composed of Three Periods. — In cases in which the
penalty prescribed by law is not composed of three periods, the courts shall
apply the rules contained in the foregoing articles, dividing into three equal
portions the time included in the penalty prescribed, and forming one period of
each of the three portions.
[18] People v. Saley, G.R. No. 121179,
July 2, 1998, 291 SCRA 715, 753-754.
[19] Id. at 755.
[20] 331 Phil. 64 (1996).
[21] 332 Phil. 710, 730-731 (1996).
[22] ARTICLE 249. Homicide. — Any
person who, not falling within the provisions of article 246 shall kill another
without the attendance of any of the circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and be punished by reclusión
temporal.
[23] 3 Phil. 437 (1904).
[24] Id. at 440.
[25] The penalty is considered
"indeterminate" because after the convict serves the minimum term, he
or she may become eligible for parole under the provisions of Act No. 4103,
which leaves the period between the minimum and maximum term indeterminate in
the sense that he or she may, under the conditions set out in said Act, be
released from serving said period in whole or in part. (People v. Ducosin,
59 Phil. 109, 114 [1933])
[26] In the other portions of the dissent
though, there is also the impression that the basis is the penalty actually
imposed as hereinabove defined. Whether it is the imposable penalty or penalty
actually imposed, the dissent's interpretation contravenes the ISL because the
minimum term should be fixed based on the prescribed penalty.
[27] See Aquino and
Griño-Aquino, The Revised Penal Code, Vol. 1, 1997 ed., pp.
772-773; Padilla, Criminal Law: Revised Penal Code Annotated, 1988
ed., pp. 211-214.
[28] 73 Phil. 549 (1941).
[29] Id. at 552.
[30] The dissent cites several cases to
establish that Gonzales has not been followed in cases outside
of estafa. An examination of
these cases reveals that this assertion is inaccurate.
1.
Sabang
v. People, G.R. No. 168818, March
9, 2007, 518 SCRA 35; People v. Candaza, G.R. No. 170474, June
16, 2006, 491 SCRA 280; People v. Concepcion, G.R. No.
169060, February 6, 2007, 514 SCRA 660; People v. Hermocilla, G.R.
No. 175830, July 10, 2007, 527 SCRA 296; People v. Abulon, G.R.
No. 174473, August 17, 2007, 530 SCRA 675.
Gonzales was applied in these cases.
2.
People
v. Miranda, G.R. No. 169078, March
10, 2006, 484 SCRA 555; Garces v. People, G.R. No. 173858, July 17,
2007, 527 SCRA 827—belongs to the class of cases involving accessories and
accomplices as well as the frustrated and attempted stages of a felony.
Strictly speaking, these cases do not deviate from Gonzales. Here,
the prescribed penalty for the principal and consummated stage, respectively,
should be merely viewed as being lowered by the proper number of degrees in
order to arrive at the prescribed penalties for accomplices and accessories as
well as the frustrated and attempted stages of a felony. In turn, from these
prescribed penalties, the minimum term is determined without considering in the
meantime the modifying circumstances, as in Gonzales.
3.
Garces
v. People, G.R. No. 173858, July
17, 2007, 527 SCRA 827—belongs to the class of cases involving privileged
mitigating circumstances.
These cases are, to a certain extent, an exception to the rule enunciated
in Gonzales. Here, the prescribed penalty is first reduced by the
proper number of degrees due to the existence of a privileged mitigating
circumstance. As thus reduced, the penalty next lower in degree is determined
from which the minimum term is taken. To the extent that the privileged
mitigating circumstance, as a modifying circumstance, is first applied to the
prescribed penalty before the penalty next lower in degree is determined, these
cases deviate from Gonzales. However, this interpretation is based
on the special nature of a privileged mitigating circumstance as well as the
liberal construction of penal laws in favor of the accused. If the privileged
mitigating circumstance is not first applied to the prescribed penalty before
determining the penalty next lower in degree from which the minimum term is
taken, it may happen that the maximum term of the indeterminate sentence would
be lower than the minimum term, or that the minimum and maximum term would both
be taken from the same range of penalty—absurdities that the law could not have
intended. These special considerations which justified a deviation from Gonzales are
not present in the instant case. As will be shown later, Gabres is
a reasonable interpretation of the ISL in relation to Article 315, par. 2(a) of
the RPC, and any contrary interpretation would be unfavorable to the accused.
[31] 59 Phil. 109 (1933).
[32] This wording of Act No. 4103 was later
amended to the current wording "minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense" by
Act No. 4225.
[33] Supra note 31 at 116-118.
[34] Similarly, in the instant case, the
maximum term imposed on the accused increased as the amount defrauded increased
in the various criminal cases filed against her as a consequence of the
incremental penalty rule.
[35] Sec. 6. Every prisoner released from
confinement on parole by virtue of this Act shall, at such times and in such
manner as may be required by the conditions of his parole, as may be designated
by the said Board for such purpose, report personally to such government
officials or other parole officers hereafter appointed by the Board of
Indeterminate Sentence for a period of surveillance equivalent to the remaining
portion of the maximum sentence imposed upon him or until final release and
discharge by the Board of Indeterminate Sentence as herein provided. The
officials so designated shall keep such records and make such reports and
perform such other duties hereunder as may be required by said Board. The
limits of residence of such paroled prisoner during his parole may be fixed and
from time to time changed by the said Board in its discretion. If during the
period of surveillance such paroled prisoner shall show himself to be a
law-abiding citizen and shall not violate any of the laws of the Philippine
Islands, the Board of Indeterminate Sentence may issue a final certificate of
release in his favor, which shall entitle him to final release and discharge.
[36] Sec. 8. Whenever any prisoner released on
parole by virtue of this Act shall, during the period of surveillance, violate
any of the conditions of his parole, the Board of Indeterminate Sentence may
issue an order for his re-arrest which may be served in any part of the
Philippine Islands by any police officer. In such case the prisoner so
re-arrested shall serve the remaining unexpired portion of the maximum sentence
for which he was originally committed to prison, unless the Board of
Indeterminate Sentence shall, in its discretion, grant a new parole to the said
prisoner.
[37] Supra note 31 at 117.
[38] G.R. No. 112985, April 21, 1999, 306 SCRA
90.
[39] G.R. No. 103065, August 16, 1999, 312 SCRA
397.
[40] G.R. No. 149472, October 15, 2002, 391
SCRA 162.
[41] G.R. No. 133645, September 17, 2002, 389
SCRA 71.
[42] 383 Phil. 213 (2000).
[43] Estafa committed
by using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions,
or by means of other similar deceits.
[44] Effective April 6, 1980.
[45] See Article 61 of the RPC.
[46] Effective June 17, 1967.
[47] Effective October 22, 1975.
[48] Supra note 41 at 80.
[49] ARTICLE 309. Penalties. — Any
person guilty of theft shall be punished by:
1.
The penalty of prisión
mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the
value of the thing stolen exceeds the latter amount, the penalty shall be the
maximum period of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may be
imposed shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prisión mayor or reclusión
temporal, as the case may be. x x x
[50] Supra note 42 at 227-228.
[51] ARTICLE 160. Commission of Another
Crime During Service of Penalty Imposed for Another Previous Offense — Penalty.
— Besides the provisions of rule 5 of article 62, any person who shall commit a
felony after having been convicted by final judgment, before beginning to serve
such sentence, or while serving the same, shall be punished by the maximum
period of the penalty prescribed by law for the new felony.
Any convict of the class referred to in this article, who is not a habitual
criminal, shall be pardoned at the age of seventy years if he shall have
already served out his original sentence, or when he shall complete it after
reaching said age, unless by reason of his conduct or other circumstances he
shall not be worthy of such clemency.
[52] See People v. Perete,
111 Phil. 943, 947 (1961).
[53] G.R. No. L-55177, February 27, 1987, 148
SCRA 98, 110.
[54] G.R. No. L-29994, July 20, 1979, 91 SCRA
500, 511.
The dissent argues that the use of quasi-recidivism as an example of an
"attending circumstance" which is outside the scope of Article 14 of
the RPC is inappropriate because quasi-recidivism is sui generis. The
argument is off-tangent. The point is simply that quasi-recidivism is not found
under Article 14 of the RPC yet it is treated as an "attending
circumstance" for purposes of the application of the ISL in relation to
the RPC. Hence, there are "attending circumstances"
outside the scope of Articles 13 and 14 of the RPC. For the same reason, the
incremental penalty rule is a special rule outside of Article 14 which, as will
be discussed later on, serves the same function as modifying circumstances
under Articles 13 and 14 of the RPC. See also Reyes,
L.B., The Revised Penal Code, 14th ed., 1998, p.
766.
[55] The common thread in the RPC is to fix the
prescribed penalty as the starting point for determining the prison sentence to
be finally imposed. From the prescribed penalty, the attending circumstances
are then considered in order to finally fix the penalty actually imposed.
Further, the designation of a prescribed penalty is made in individual
articles, or prescribed penalties are individually designated in separate
paragraphs within a single article. Under Article 315, the penalty for estafa when the amount defrauded is
over P12,000.00 but does not exceed P22,000.00 and when such amount exceeds
P22,000.00 is lumped within the same paragraph. Thus, the penalty of prisión
correccional maximum to prisión mayor minimum may be
reasonably considered as the starting point for the computation of the penalty
actually imposed, and hence, the prescribed penalty when the amount defrauded
exceeds P22,000.00. As will be discussed shortly, the amount defrauded in
excess of P22,000.00 may then be treated as a special aggravating circumstance
and the incremental penalty as analogous to a modifying circumstance in order
to arrive at the penalty actually imposed consistent with the letter and spirit
of the ISL in relation to the RPC.
[56] People v. Ladjaalam, 395 Phil. 1,
35 (2000).
[57] Cases involving privileged mitigating
circumstances would, likewise, deviate from this general rule since the maximum
term would be taken from a penalty lower than the prescribed
penalty. See note 13.
[58] G.R. Nos. 119987-88, October 12, 1995, 249
SCRA 244.
[59] Id. at 251.
[60] The aforesaid phrases are broad enough to
justify Mr. Justice Azcuna's interpretation, however, they are vague enough not
to exclude the interpretation under Gabres. The said phrases
may be so construed without being inconsistent with Gabres. (See Articles
90 and 92 of the RPC)
[61] 3 Sutherland Statutory Construction § 59:3
(6th ed.)
[62] Id. citing Buzzard v.
Commonwealth, 134 Va. 641, 114 S.E. 664 (1992).
SEPARATE OPINION
CORONA, J.:
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A man cannot suffer more punishment than
the law assigns, but he may suffer less. – William
Blackstone[1] |
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For when lenity and cruelty play for a kingdom, the
gentler gamester is the soonest winner. – William Shakespeare[2] |
The application of the Indeterminate Sentence Law is one of the more
complicated and confusing topics in criminal law. It befuddles not a few
students of law, legal scholars and members of the bench and of the bar.[3] Fortunately, this case presents a great opportunity for the
Court to resolve with finality a controversial aspect of the application and
interpretation of the Indeterminate Sentence Law. It is an occasion for the
Court to perform its duty to formulate guiding and controlling principles, precepts,
doctrines or rules.[4] In the process, the matter can be
clarified, the public may be educated and the Court can exercise its symbolic
function of instructing bench and bar on the extent of protection given by
statutory and constitutional guarantees.[5]
The fundamental principle in applying and interpreting criminal laws, including
the Indeterminate Sentence Law, is to resolve all doubts in favor of the
accused. In dubio pro reo. When in doubt, rule for the accused.
This is in consonance with the constitutional guarantee that the accused ought
to be presumed innocent until and unless his guilt is established beyond
reasonable doubt.[6]
Intimately intertwined with the in dubio pro reo principle is
the rule of lenity. It is the doctrine that "a court, in construing an
ambiguous criminal statute that sets out multiple or inconsistent punishments,
should resolve the ambiguity in favor of the more lenient punishment."[7]
Lenity becomes all the more appropriate when this case is viewed through the
lens of the basic purpose of the Indeterminate Sentence Law "to uplift and
redeem valuable human material, and prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness."[8] Since the goal of the Indeterminate Sentence Law is to look
kindly on the accused, the Court should adopt an application or interpretation
that is more favorable to the accused.
It is on the basis of this basic principle of criminal law that I respectfully
submit this opinion.
THE BONE OF CONTENTION
The members of the Court are unanimous that accused-appellant Beth Temporada
was correctly found guilty beyond reasonable doubt of the crimes of illegal
recruitment and estafa by the
Regional Trial Court of Manila, Branch 33 and the Court of Appeals. However,
opinions differ sharply on the penalty that should be imposed on
accused-appellant for estafa. In
particular, there is a debate on how the Indeterminate Sentence Law should be
applied in a case like this where there is an incremental penalty when the
amount embezzled exceeds P22,000 (by at least P10,000).
In this connection, the relevant portion of Article 315 of the Revised Penal
Code provides:
ART. 315. Swindling
(estafa). – Any person who shall
defraud another by any means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall in no case exceed twenty years. In
such case, and in connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be termed prision mayor to reclusion
temporal, as the case may be.
x x
x x x
x x x x
On the other hand, the relevant portion of the
Indeterminate Sentence Law provides:
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that prescribed by
the Code for the offense; x x x
Jurisprudence shows that there are two schools
of thought on the incremental penalty in estafa vis-à-vis
the Indeterminate Sentence Law. Under the first school of thought, the
minimum term is fixed at prision correccional while the
maximum term can reach up to reclusion temporal. This is the
general interpretation. It was resorted to in People v. Pabalan,[9] People v. Benemerito,[10] People v. Gabres[11] and in a string of
cases.[12]
On the other hand, under the second school of thought, the minimum term
is one degree away from the maximum term and therefore varies as
the amount of the thing stolen or embezzled rises or falls. It is the line
of jurisprudence that follows People v. De la Cruz.[13] Among the cases of this genre are People v. Romero,[14] People v. Dinglasan[15] and Salazar v. People.[16]
The Court is urged in this case to adopt a consistent position by categorically
discarding one school of thought. Hence, our dilemma: which of the two schools
of thought should we affirm?
THE FIRST SCHOOL OF THOUGHT IS
MORE FAVORABLE TO THE ACCUSED
Under the Indeterminate Sentence Law, in imposing a sentence, the court must
determine two penalties composed of the "maximum" and
"minimum" terms, instead of imposing a single fixed penalty.[17] Hence, the indeterminate sentence is composed of a maximum
term taken from the penalty imposable under the Revised Penal Code and a
minimum term taken from the penalty next lower to that fixed in the said Code.
The maximum term corresponds to "that which, in view of the attending
circumstances, could be properly imposed under the rules of the [Revised Penal]
Code." Thus, "attending circumstances" (such as mitigating,
aggravating and other relevant circumstances) that may modify the imposable
penalty applying the rules of the Revised Penal Code is considered in
determining the maximum term. Stated otherwise, the maximum term is arrived at
after taking into consideration the effects of attendant modifying
circumstances.
On the other hand, the minimum term "shall be within the range of the
penalty next lower to that prescribed by the [Revised Penal] Code for the
offense." It is based on the penalty prescribed by the Revised Penal Code
for the offense without considering in the meantime the modifying circumstances.[18]
The penalty prescribed by Article 315 of the Revised Penal Code for the felony
of estafa (except estafa under Article 315(2)(d))[19] is prision correccional in its maximum
period to prision mayor in its minimum period if the amount of
the fraud is over P12,000 but does not exceed P22,000. If it exceeds P22,000,
the penalty provided in this paragraph shall be imposed in its maximum period.
Moreover, where the amount embezzled is more than P22,000, an incremental
penalty of one year shall be added for every additional P10,000.
Thus, the Revised Penal Code imposes prision correccional in
its maximum period to prision mayor in its minimum period (or
a period of four years, two months and one day to eight years) if the amount of
the fraud is more than P12,000 but not more than P22,000. If it exceeds
P22,000, the penalty is imposed in its maximum period (or a period of six
years, 8 months and 21 days to eight years) with an incremental penalty of one
year for each additional P10,000 subject to the limitation that the total
penalty which may be imposed shall in no case exceed 20 years.
Strictly speaking, the circumstance that the amount misappropriated by the
offender is more than P22,000 is a qualifying circumstance. In People
v. Bayot,[20] this Court defined a qualifying
circumstance as a circumstance the effect of which is "not only to give
the crime committed its proper and exclusive name but also to place the author
thereof in such a situation as to deserve no other penalty than that especially
prescribed for said crime." Applying the definition to estafa where the amount embezzled is more
than P22,000, the amount involved ipso jure places the
offender in such a situation as to deserve no other penalty than the imposition
of the penalty in its maximum period plus incremental penalty, if warranted.[21] In other words, if the amount involved is more than P22,000,
then the offender shall be sentenced to suffer the maximum period of the
prescribed penalty with an incremental penalty of one year per additional
P10,000.
However, People v. Gabres considered the circumstance that
more than P22,000 was involved as a generic modifying circumstance which is
material only in the determination of the maximum term, not of the minimum
term:
Under the Indeterminate Sentence Law, the
maximum term of the penalty shall be "that which, in view of the attending
circumstances, could be properly imposed" under the Revised Penal Code,
and the minimum shall be "within the range of the penalty next lower to that
prescribed" for the offense." The penalty next lower should be based
on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the
crime. The determination of the minimum penalty is left by law to the sound
discretion of the court and it can be anywhere within the range of the penalty
next lower without any reference to the periods into which into which it might
be subdivided. The modifying circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence.
The fact that the amounts involved in the instant case exceed P22,000.00 should
not be considered in the initial determination of the indeterminate penalty;
instead, the matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the full
indeterminate sentence. This interpretation of the law accords with the
rule that penal laws should be construed in favor of the accused. Since the
penalty prescribed by law for the estafa charged
against accused-appellant is prision correccional maximum
to prision mayor minimum, the penalty next lower would then
be prision correccional minimum to medium. Thus, the minimum
term of the indeterminate sentence should be anywhere within six (6) months and
one (1) day to four (4) years and two months while the maximum term of the
indeterminate sentence should at least be six (6) years and one (1) day because
the amounts involved exceeded P22,000.00, plus an additional one (1) year for
each additional P10,000.00. (emphasis supplied)
If the circumstance that
more than P22,000 was involved is considered as a qualifying circumstance, the
penalty prescribed by the Revised Penal Code for it will be the maximum period
of prision correccional in its maximum period to prision
mayor in its minimum period. This has a duration of six years, 8
months and 21 days to eight years. The penalty next lower (which will
correspond to the minimum penalty of the indeterminate sentence) is the medium
period of prision correccional in its maximum period to prision
mayor in its minimum period, which has a duration of five years, five
months and 11 days to six years, eight months and 20 days.[22]
If the circumstance is considered simply as a modifying circumstance (as
in Gabres), it will be disregarded in determining the minimum term
of the indeterminate sentence. The starting point will be prision
correccional maximum to prision mayor minimum and the
penalty next lower will then be prision correccional in its
minimum to medium periods, which has a duration of six months and one day to
four years and two months.
From the foregoing, it is more favorable to the accused if the circumstance
(that more than P22,000 was involved) is to be considered as a modifying circumstance,
not as a qualifying circumstance. Hence, I submit that the Gabres rule
is preferable.
On the contrary, the second school of thought is invariably prejudicial to the
accused. By fixing the minimum term of the indeterminate sentence to one degree
away from the maximum term, the minimum term will always be longer than prision
correccional in its minimum to medium periods.
Worse, the circumstance (that more than P22,000 was embezzled) is not a
modifying circumstance but a part of the penalty, if adopted, will mean that
the minimum term of the indeterminate sentence will never be lower than the
medium period of prision correccional in its maximum period
to prision mayor in its minimum period, the penalty next lower
to the maximum period of prision correccional in its
maximum period to prision mayor in its minimum period.
THE SECOND SCHOOL OF THOUGHT
AND ITS SHORTCOMINGS
The primary defect of the so-called second school of thought is that it
contradicts the in dubio pro reo principle. It also violates
the lenity rule. Instead, it advocates a stricter interpretation with harsher
effects on the accused. In particular, compared to the first school of thought,
it lengthens rather than shortens the penalty that may be imposed on the
accused. Seen in its proper context, the second school of thought is contrary
to the avowed purpose of the law that it purportedly seeks to promote, the
Indeterminate Sentence Law.
The second school of thought limits the concept of "modifying circumstance"
to either a mitigating or aggravating circumstance listed under Articles 13 and
14 of the Revised Penal Code. It contends that the respective enumerations
under the said provisions are exclusive and all other circumstances not
included therein were intentionally omitted by the legislature. It further
asserts that, even assuming that the circumstance that more than P22,000 was
embezzled may be deemed as analogous to aggravating circumstances under Article
14, the said circumstance cannot be considered as an aggravating circumstance
because it is only in mitigating circumstances that analogous circumstances are
allowed and recognized.[23] The second school of thought then insists
that, since the circumstance that more than P22,000 was involved is not among
those listed under Article 14, the said circumstance is not a modifying
circumstance for purposes of the Indeterminate Sentence Law.
The second school of thought therefore strictly construes the term
"attending circumstances" against the accused. It refuses to
recognize anything that is not expressed, takes the language used in its exact
meaning and admits no equitable consideration.
To the point of being repetitive, however, where the accused is concerned,
penal statutes should be interpreted liberally, not strictly.
The fact that there are two schools of thought on the matter by itself shows
that there is uncertainty as to the concept of "attending" or
"modifying" circumstances. Pursuant to the in dubio pro reo principle,
the doubt must be resolved in favor of the accused and not against him.
Moreover, laws must receive sensible interpretation to promote the ends for
which they are enacted.[24] The meaning of a word or phrase used in a
statute may be qualified by the purpose which induced the legislature to enact
the statute. The purpose may indicate whether to give a word or phrase a
restricted or expansive meaning.[25] In construing a
word or phrase, the court should adopt the interpretation that best serves the
manifest purpose of the statute or promotes or realizes its object.[26] Where the language of the statute is fairly susceptible to
two or more constructions, that which will most tend to give effect to the
manifest intent of the lawmaker and promote the object for which the statute
was enacted should be adopted.[27] Taken in
conjunction with the lenity rule, a doubtful provision of a law that seeks to
alleviate the effects of incarceration ought to be given an interpretation that
affords lenient treatment to the accused.
The Indeterminate Sentence Law is intended to favor the accused, particularly
to shorten his term of imprisonment.[28] The reduction of
his period of incarceration reasonably helps "uplift and redeem valuable
human material, and prevent unnecessary and excessive deprivation of personal
liberty and economic usefulness." The law, being penal in character, must
receive an interpretation that benefits the accused.[29] This Court already ruled that "in cases where the
application of the law on indeterminate sentence would be unfavorable to the
accused, resulting in the lengthening of his prison sentence, said law on
indeterminate sentence should not be applied."[30] In the same vein, if an interpretation of the Indeterminate
Sentence Law is unfavorable to the accused and will work to increase the term
of his imprisonment, that interpretation should not be adopted. It is also for
this reason that the claim that the power of this Court to lighten the penalty
of lesser crimes carries with it the responsibility to impose a greater penalty
for grave penalties is not only wrong but also dangerous.
Nowhere does the Indeterminate Sentence Law prescribe that the minimum term of
the penalty be no farther than one degree away from the maximum term. Thus,
while it may be true that the minimum term of the penalty in an indeterminate
sentence is generally one degree away from the maximum term, the law does not
mandate that its application be rigorously and narrowly limited to that
situation.
THE PROPER INDETERMINATE
PENALTIES IN THESE CASES
From the above disquisition, I respectfully submit that the prevailing rule,
the so-called first school of thought, be followed. With respect to the
indeterminate sentence that may be imposed on the accused, I agree with the
position taken by Madame Justice Consuelo Ynares-Santiago.
Accordingly, I vote that the decision of the Court of Appeals be AFFIRMED with
the following modifications:
|
|
(1) |
in Criminal Case No. 02-208372, the accused be sentenced
to an indeterminate penalty of 4 years and 2 months of prision
correccional as minimum, to 9 years, 8 months and 21 days of prision
mayor as maximum; |
|
|
||
|
|
(2) |
in Criminal Case Nos. 02-208373, 02-208375, and 02-208376,
the accused be sentenced to an indeterminate penalty of 4 years and 2 months
of prision correccional as minimum, to 10 years, 8 months
and 21 days of prision mayor as maximum for each of the
aforesaid three estafa cases
and |
|
|
||
|
|
(3) |
in Criminal Case No. 02-208374, the accused be sentenced
to an indeterminate penalty of 4 years and 2 months of prision
correccional as minimum, to 12 years, 8 months and 21 days of prision
mayor as maximum. |
[1] Commentaries on the Laws of England 92.
[2] King Henry The Fifth, Act 3, Scene 6, Line
11.
[3] A survey of criminal law jurisprudence
will show that among the portions of the ruling of trial courts and the
appellate court that are most commonly corrected by this Court is the
application of the Indeterminate Sentence Law. In fact, even this Court has
grappled with the matter. (See People v. Moises, [160 Phil.
845 (1975)] overruling People v. Colman [103 Phil. 6
(1958)]; People v. Gonzales [73 Phil. 549 (1942)]
overturning People v. Co Pao [58 Phil. 545 (1933)] and People
v. Gayrama (60 Phil. 796 (1934)] and People v. Mape [77
Phil. 809 (1947)] reversing People v. Haloot [64 Phil. 739
(1937)] which followed the Co Pao ruling.)
[4] See Salonga v. Cruz Paño, 219
Phil. 402 (1985).
[5] Id.
[6] See Section 14 (2),
Constitution.
[7] Black's Law Dictionary, Eighth Edition
(2004), p. 1359.
[8] People v. Ducosin, 59 Phil. 109
(1933).
[9] 331 Phil. 64 (1996).
[10] 332 Phil. 710 (1996).
[11] 335 Phil. 242 (1997).
[12] These cases include People v.
Hernando, 375 Phil. 1078 (1999), People v. Menil, 394
Phil. 433 (2000), People v. Logan, 414 Phil. 113 (2001), People
v. Gallardo, 436 Phil. 698 (2002), Garcia v. People, 457
Phil. 713 (2003) and Vasquez v. People, G.R. No. 159255, 28
January 2008, 542 SCRA 520.
[13] 383 Phil. 213 (2000).
[14] 365 Phil. 531 (1999).
[15] 437 Phil. 621 (2002).
[16] 439 Phil. 762 (2002).
[17] People v. Ducosin, supra.
[18] People v. Gonzales, supra note
3.
[19] The penalty for estafa under Article 315(2)(d) is
provided under PD 818 (Amending Article 315 of the Revised Penal Code by
Increasing the Penalties for Estafa Committed
by Means of Bouncing Checks).
[20] 64 Phil. 269 (1937).
[21] This is similar to the effect of the
circumstance that the offender intended to aid the enemy by giving notice or
information that is useful to the enemy in the crime of correspondence with
hostile country under Article 120(3) of the Revised Penal Code (which
necessitates the imposition of reclusion perpetua to death) or
of the circumstance that the offender be a public officer or employee in the
crime of espionage under Article 117 of the Revised Penal Code (which requires
the imposition of the penalty next higher in degree than that generally imposed
for the crime).
[22] See Article 61(5) of the
Revised Penal Code. If the penalty is any one of the three periods of a
divisible penalty, the penalty next lower in degree shall be that period next
following the given penalty. Thus, the penalty immediately inferior to prision
mayor in its maximum period is prision mayor in its
medium period (People v. Co Pao, supra note 3). If the
penalty is reclusion temporal in its medium period, the
penalty next lower in degree is reclusion temporal in its
minimum period (People v. Gayrama, supra note 3). The
penalty prescribed by the Revised Penal Code for a felony is a degree. If
the penalty prescribed for a felony is one of the three periods of a divisible
penalty, that period becomes a degree, and the period immediately below is the
penalty next lower in degree (Reyes, Luis B., The Revised Penal Code,
Book Two, Fifteenth Edition [2001], p. 700).
[23] In particular, Article 13(10) expressly
provides that "any other circumstances of a similar nature and analogous
to those above mentioned" are treated as mitigating. Article 14, however,
does not have a similar provision.
[24] Lo Cham v. Ocampo, 77 Phil. 636
(1946).
[25] Krivenko v. Register of Deeds, 79
Phil. 461 (1947).
[26] Muñoz & Co. v. Hord, 12 Phil.
624 (1909).
[27] Ty Sue v. Hord, 12 Phil. 485
(1909).
[28] People v. Nang Kay, 88 Phil. 515
(1951).
[29] Id.
[30] Id.
SEPARATE DISSENTING OPINION
AZCUNA, J.:
I join the Chief Justice in his dissent.
The penalty for estafa is a
unique one, in a class by itself. The penalty prescribed by law depends
on the amount involved. If it does not exceed P22,000, it is the penalty
stated in par. 2(a) of Art. 315 of the Revised Penal Code, i.e.,
prision correccional maximum to prision mayor minimum.
If it exceeds P22,000, it is that penalty plus one year for every P10,000, but
in no case more than 20 years. Then the law states that in that event the
penalty should be "termed" prision mayor or reclusion
temporal, "as the case may be."
Accordingly, if the amount involved is, say, P500 Million, the penalty
prescribed by law is reclusion temporal. Hence, the penalty
one degree lower than that is prision mayor and it is within
this one-degree lower penalty, i.e., prision mayor, that the minimum
of the indeterminate sentence
is to be fixed.
D I S S E N T I N G O P I N I
O N
VELASCO, J.:
I join the dissent of Chief Justice Reynato S. Puno.
It is clear that if the amount of fraud is over PhP 12,000 but does not exceed
PhP 22,000, the penalty prescribed by Article 315 of the Revised Penal Code
is prision correccional in its maximum to prision
mayor in its minimum. Applying the Indeterminate Sentence Law
(ISL), the RPC prescribed penalty will constitute the maximum period and the
penalty next lower is prision correccional in its minimum to
medium periods (6 months and 1 day to 4 years and 2 months). The ISL
gives the judge the discretion in fixing the minimum penalty within the penalty
next lower than the RPC prescribed penalty. Thus, the judge for an estafa involving over PhP 12,000 but not
exceeding PhP 22,000 can prescribe the penalty of 4 years and 2 months as
minimum period.
On the other hand, for the crime of estafa involving
an amount exceeding PhP 22,000, which can go as high as several millions of
pesos, the majority view posits that the RPC prescribed penalty is still prision
correccional in its maximum period to prision mayor in
its minimum period as the minimum period and the adjusted penalty based on the
formula of 1 year per every PhP 10,000 but not to exceed 20 years is the
maximum period. Thus following this line of reasoning, it admits that the
penalty next lower would be prision correccional in its
minimum and medium periods. Applying the ISL, the minimum period for an estafa of over PhP 22,000 can very well
be 4 years and 2 months—exactly the same minimum penalty for estafa involving over PhP 12,000 but not
exceeding PhP 22,000.
This result would be at war with the principle that the penalty for estafa is strictly based on the value or
amount involved.[1] This doctrine is captured in the
graduation of penalties under Article 315(1), thus:
|
Article 315 |
Amount |
Penalty |
|
4th par. |
Less than P200.00 |
Arresto Mayor in its medium and maximum period |
|
3rd par. |
Over P200.00 but less than P6,000.00 |
Arresto Mayor in its maximum period to prision
correccional in its minimum period |
|
2nd par. |
Over P6,000.00 but less than P12,000.00 |
Prision correccional in its minimum and medium period |
|
1st par. |
Over P12,000.00 but less than P22,000.00 |
Prision correccional in its maximum period to prision
mayor in its minimum period |
|
1st par. |
Over P22,000.00 add 1 year |
(should be Prision Mayor or Reclusion Temporal) |
It is obvious that the
intent of the legislators in enacting Art. 315 of the RPC is to impose a
penalty for estafa that is
graduated—the graduation being based on the amount of the fraud. The
higher the amount, the higher is the period of imprisonment. If we apply
the First School of Thought which the majority adopted, then the minimum period
under ISL for estafa from less
than PhP 12,000 up to PhP 22,000 and the estafa exceeding
PhP 22,000 will always be taken from within the range of prision
correccional minimum and medium (i.e., from 6 months and 1 day to 4
years and 2 months). Thus, a swindler of a lesser amount (from PhP 12,000
to PhP 22,000) could be imprisoned for the same minimum term as a swindler of
millions. This should not be the case. Justice demands that crime be punished
and that the penalty imposed be commensurate with the offense committed.[2]
I submit that principle of proportionality between the offense committed and
the penalty imposed finds application in determining the penalty for the crime
of estafa. The penalty
for estafa must always be
commensurate with the amount defrauded.[3] If the concept of
proportionality between the offense committed and the sanction imposed is not
strictly adhered to, then unfairness and injustice will inevitably result.
It is a general rule of statutory construction that a law should not be so
construed as to produce an absurd result.[4] The law does not
intend an absurdity or that an absurd consequence shall flow from its
enactment. If the words of the statute are susceptible of more than one
meaning, the one that has a logical construction should be adopted over the one
that will produce an absurdity. Statutes should receive a
sensible construction, such as will give effect to the legislative intention
and so as to avoid an unjust or an absurd conclusion.[5] Indeed a ridiculous situation will arise if a swindler of
millions and a con man of less than PhP 22,000 will receive the same minimum
sentence of 4 years and 2 months.
Worse, not only is the swindler of millions entitled to a very low penalty, he
might very well even be qualified to avail of probation. A suspended
execution of the penalty for a "big time" swindler could not have
been intended by the framers of the Revised Penal Code.
The majority anchors its position on the postulate that all doubts should be
resolved in favor of the accused. This principle however cannot prevail
over the purpose or intent of the law. Undeniably the intendment of the
law is to impose on the swindlers a higher penalty depending on the amount of
fraud. This is easily deducible from the formula of imposing an
additional one year of imprisonment for every PhP 10,000 over the threshold
amount of PhP 22,000. If such was not the intent, then the RPC could have
easily provided a penalty of prision mayor in its medium and
maximum periods for estafa involving
more than PhP 22,000 and above. The legislators, however, insisted on a
higher penalty, clearly revealing an intent impose a harsher punishment for big
time "estafadors."
Another point that has to be elucidated is the proposition of the majority that
the maximum period of the penalty for estafa of
more than PhP 22,000 is determined by using the formula of one (1) year for
every additional PhP 10,000 while the minimum period is prision
correccional in its maximum period to prision mayor in
its minimum period. This is the only penalty, if accepted as correct,
that has a fixed maximum period but a minimum period which is composed of two
(2) periods—prision correccional in its maximum to prision
mayor in its minimum period. Nowhere in the RPC or special laws
can we find a penalty prescribed in that manner. Undoubtedly, this is not
the prescribed penalty for estafa of
more than PhP 22,000.
I concur with the view that Art. 315(1) that the penalty for estafa of more than PhP 22,000 is a
single fixed penalty of either prision mayor or reclusion
temporal.
I submit that the starting point for the computation of estafa of over PhP 22,000 should be the
penalty of eight (8) years based on the phrase in Article 315(1) that "the
penalty provided in this paragraph shall be imposed in the maximum."
8 years of imprisonment is prision mayor in its minimum
period. Then we apply the formula of adding one (1) year for every additional
PhP 10,000. To illustrate:
|
Amount of Fraud |
Imprisonment |
|
Over 22T to 32T |
9 years (prision mayor) |
|
Over 32T to 42T |
10 years |
|
Over 42T to 52T |
11 years |
|
Over 52T to 62T |
12 years |
|
Over 62T to 72T |
13 years (reclusion temporal) |
|
Over 72T to 82T |
14 years |
|
Over 82T to 92T |
15 years |
|
Over 92T to 102T |
16 years |
|
Over 102T to 112T |
17 years |
|
Over 112T to 122T |
18 years |
|
Over 122T to 132T |
19 years |
|
Over 132T to 142T |
20 years |
If the amount of the fraud is from PhP 22,001 to
PhP 62,000 then the penalty is simply prision mayor. If the
threshold PhP 62,000 is reached, then the penalty is reclusion temporal.
The penalty cannot by express terms of the law, go higher than reclusion
temporal in its maximum of 20 years. In other words, the penalty
for estafa involving an amount
over PhP 22,000 up to PhP 142,000 and above is a single fixed penalty
or straight penalty of either prision mayor or reclusion
temporal depending on the amount. This is clear from Art. 315, 1st par.:
In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be; x x x
(emphasis supplied.)
Given the above
perspective, it is quite easy to compute the ISL. If the penalty is prision
mayor, the penalty next lower to that fixed by the RPC is prision
correccional. If the penalty is reclusion temporal, then
the penalty next lower is prision mayor. The judge will
determine the maximum period by taking into consideration the attendant
circumstances and the minimum shall be within the range of the next lower
penalty.
With the foregoing mode of computation, for estafa of
more than PhP 22,000 up to PhP 62,000, the penalty is 12 years of prision
mayor. Applying the ISL, the penalty next lower is prision
correccional—6 months, 1 day to 6 years. The judge has the discretion
to fix the minimum within the range of prision correccional.
However, since the maximum minimum penalty under ISL for estafa involving PhP 12,000 but not to
exceed PhP 22,000, is 4 years and 2 months, then the minimum period for estafa of an amount over PhP 22,000 can
be made higher than 4 years and 2 months. This way, the imposition of
penalties under Art. 315(1) will be in harmony with the principle of
proportionality that the penalty must be commensurate to the gravity of the
offense and in line with the graduation of penalties under Art. 315.
For estafa involving more than
PhP 62,000, then the penalty is a single fixed penalty of reclusion
temporal while the penalty next lower is prision mayor.
Thus the minimum period is any penalty within 6 years and 1 day to 12
years. The minimum period will undoubtedly be higher than the minimum
period of 4 years and 2 months which has been fixed for estafa involving more than PhP 12,000 but
not exceeding PhP 22,000. This manner of computation would be more in
keeping with the intent of the framers of the Revised Penal Code.
Hence, my dissent.
[1] U.S. v. Fernandez, 9 Phil. 199 (1907); U.S. v.
Leaño, 6 Phil. 368 (1906).
[2] Echegaray v. Secretary of Justice,
310 SCRA 96, 138 (1999), Separate Opinion of J. Vitug citing Record of the
House of Representatives re: House Bill No. 62, which later evolved into the
Death Penalty Law, R.A. 7659, now repealed by R.A. 9346.
[3] People v. Pascua, Aviguetero and
Soliven, G.R. No. 125081, October 3, 2001; People v. Benemerito,
G.R. No. 120389, November 21, 1996.
[4] Ang Giok Chip v. Springfield,
No. L-33637, December 31, 1931; Paras v. COMELEC, G.R. No. 123169,
November 4, 1996.
[5] Corsico, Jr. v. NLRC, G.R. No.
118432, May 23, 1997.
EN BANC
[ G.R. No. L-45490, November 20, 1978 ]
THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS.
HON. JOSE SABIO, SR., CITY JUDGE OF CAGAYAN DE ORO AND RANULFO M. SALAZAR,
RESPONDENTS.
[G.R. NO. L-45711. NOVEMBER 20, 1978]
TAN TAO LIAP, ALIAS JIMMY TAN, PETITIONER, VS. THE COURT OF APPEALS AND PEOPLE
OF THE PHILIPPINES, RESPONDENTS.
[G.R. NO. L-42971. NOVEMBER 20, 1978]
DAYLINDA A. LAGUA, PETITIONER, VS. HON. VICENTE M. CUSI, JR., AS JUDGE OF THE
COURT OF FIRST INSTANCE OF DAVAO CITY, THE CITY FISCAL OF DAVAO, GEMPESAW
HARDWARE AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
D E C I S I O N
CONCEPCION
JR., J.:
For review on certiorari are: (1) the order of the City Court of
Cagayan de Oro dated January 6, 1977 which granted the motion to quash the
information for estafa filed
against the accused in Criminal Case No. 33867, "People of the
Philippines vs. Ranulfo Salazar" (L-45490); (2) the decision of the Court of Appeals in case
CA-G.R. No. 16195-Cr, "People of the Philippines vs. Tan Tao Liap" (L-45711) which affirmed the decision of
the City Court of Pasay City convicting the accused of the crime of estafa, and (3) the order of the Court of
First Instance of Davao City in Criminal Case No. 2023, entitled "People of the
Philippines vs. Daylinda Lagua" (L-42971) dated December 23, 1975 which denied petitioner's
motion to quash. These cases are jointly considered in view of the similarity
of the issue involved and which is whether or not the issuance of a postdated
check, which is subsequently dishonored for insufficiency of funds, in payment
of a pre-existing obligation constitutes estafa as
defined and penalized under Article 315, par. 2(d) of the Revised Penal Code as
amended by Republic Act No. 4885 and Presidential Decree No. 818.
G.R. No. L-45490:
The
circumstances leading to this case are brief and undisputed. On May 29, 1975,
the complainants, Ramon Yap and Tommy Pacana, leased to the accused, Ranulfo
Salazar, the "Tanguili Night Club" situated in Cagayan de Oro City,
for the monthly rental of P2,000.00. On May 23, 1976, Ranulfo Salazar paid
P500.00 in cash and P1,500.00 in check (PBC Check No. C179-4555 postdated May
31, 1976) to Ramon Yap for the rental of the premises corresponding to the
period from April 15 to May 15, 1976. However, when the check was presented to
the bank for payment, the same was dishonored for lack of funds to cover the
same. For failure of Ranulfo Salazar to make good his obligation, complainants
instituted a suit for estafa against
him, and on June 10, 1976, the First Assistant City Fiscal of Cagayan de Oro
City filed with the City Court of Cagayan de Oro (for preliminary
investigation) the following information:
"That
on or about May 23, 1976, in Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, by means of
false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud, with intent to defraud and knowing that he had no
money to pay, did then and there wilfully, unlawfully and feloniously issue a
Philippine Banking Corporation Check No. C179 for P1,500.00 in favor of Ramon
Yap dated May 31, 1976, in payment of and/or representing accused monthly
rental of the Tanguili Night Club for April 15, 1976 to May 15, 1976, knowing
fully well that said accused had no funds in the bank or the funds deposited by
him is not sufficient to cover the amount of said check as evidence by the fact
that when said check was presented for encashment, it bounces or was dishonored
for reason that there is no funds available and despite demands made, accused
failed and refused and still fails and refuses to make good or pay the same, to
the damage and prejudice of the offended party in the aforementioned sum of
P1,500.00, Philippine Currency."[1]
On
August 6, 1976, Ranulfo Salazar filed a motion to quash the information
alleging:
“1.
That the facts charged do not constitute an offense; and
“2.
That the accused is not the drawer or the person who issued PBC Check No.
C179-4555 in the amount of P1,500.00 subject matter of this litigation in favor
of the complainant."[2]
An
opposition to the said motion to quash was filed by the prosecution and after
the parties were heard in oral argument, the City Court issued an order dated
January 6, 1977 granting the motion to quash by ruling that since the check was
issued in payment of a pre-existing obligation, no estafa was committed. Petitioner now seeks the nullity of
said order on the ground that the same is not in accord with law, being an
erroneous interpretation of the provision of Article 315, paragraph 2(d) of the
Revised Penal Code and of Rule 112 of the Rules of Court.
G.R. No. L-45711:
The
record shows that the petitioner Tan Tao Liap and the complainant were old
friends. On several occasions from January to July, 1972, Tan Tao Liap borrowed
money from Ngo Cheng which amounted to P9,000.00. It was only in the early part
of August, 1972 that Ngo Cheng demanded from Tan Tao Liap the payment of his
indebtedness plus the sum of P500.00 as interest.[3] Tan Tao Liap informed Ngo Cheng that he did not have
sufficient funds to pay but that he might possibly be able to settle the debt
about the end of the month as he was then expecting to receive some money at
that time. Tan Tao Liap further proposed to pay the loan on a staggered basis
and Ngo Cheng agreed to this proposal on the condition, however, that Tan Tao
Liap would issue him three (3) checks, namely: (1) Check No. 7-442560 dated
August 24, 1972 for P3,000.00; (2) Check No. 7442561 dated August 31, 1972 for
P3,000.00 and (3) Check No. 7442562 dated September 1, 1972, for P3,500.00, all
drawn against his account with the Consolidated Bank and Trust Company at Soler
St., Manila.[4] The first check was deposited by Ngo
Cheng with the Associated Bank at Pasay City and it was duly paid and cleared
by the Consolidated Bank as Tan Tao Liap was able to deposit sufficient funds
to cover the same.[5] Subsequently, however, Tan Tao Liap
suffered business reverses and so what he did was to inform Ngo Cheng not to
deposit the second and third checks which were to mature on August 31, 1972 and
September 1, 1972, respectively, because of his inability to raise the amounts
to cover said checks. As an alternative, Tan Tao Liap proposed to pay the
balance in monthly installments of P300.00 until such time that he could raise
enough funds. Ngo Cheng, however, turned down the offer and even told Tan Tao
Liap that he was going to file a criminal case against him if he failed to
deposit the amount for the two remaining checks.[6] At the instance of Ngo Cheng, Tan Tao Liap was charged by
the City Fiscal of Pasay City with the crime of estafa on January 24, 1973 for issuing the third check (No.
7-442562, dated September 1, 1972, for P3,500.00) which was dishonored for lack
of funds.
On
November 9, 1973, the City Court rendered its decision convicting Tan Tao Liap
of the crime of estafa despite
its finding that the check was issued in payment of a pre-existing obligation.[7] Subsequently, Tan Tao Liap appealed the said decision to
the Court of Appeals. However, on October 26, 1976, the Court of Appeals
rendered judgment affirming that of the City Court of Pasay City. Not satisfied
with the decision of the Court of Appeals, Tan Tao Liap now seeks a review
thereof by this Court alleging that:
"THE
COURT OF APPEALS ERRED IN CONSTRUING ARTICLE 315 OF THE REVISED PENAL CODE AS
HOLDING PETITIONER LIABLE FOR ESTAFA FOR
HAVING ISSUED A BAD CHECK EVEN IF THE CHECK HAD BEEN ISSUED IN PAYMENT OF A
PRE-EXISTING DEBT."
G.R. No. L-42971:
The
petitioner, Daylinda A. Lagua, is engaged in the logging business in Davao City
under the business name "Manuel P. Lagua Logging Enterprises". Since
October of 1973, the Lagua Enterprises had been buying their logging supplies
and hardware on credit from the Gempesaw Hardware in Davao City, managed by
Marcos Chua. The items delivered on credit to the Lagua Enterprises by the
Gempesaw Hardware for the period from October, 1973 to June 20, 1974 amounted
to P28,601.54. Demands were made for its payment and sometime in July, 1974,
Daylinda Lagua issued Equitable Banking Corporation Check No. 22711219A, in the
amount of P30,000.00, payable to Marcos Chua and postdated August 24, 1974, the
difference in the amount being the accrued interests on the amount of
P28,601.54, in payment of the obligation. Upon presentment after its due date,
the said check was dishonored by the drawee bank for insufficient funds.
Accordingly, a letter was sent to Daylinda Lagua demanding payment therefor,
but she failed to pay. Consequently, an information was filed before the Court
of First Instance of Davao City charging her with estafa, defined and penalized under Article 315, par. 2(d) of
the Revised Penal Code, as amended by Republic Act No. 4885, committed as
follows:
"That
on or about August 24, 1974, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, well knowing
that she did not have sufficient funds in the bank, did then and there
wilfully, unlawfully and feloniously and with intent to gain issue and made out
an Equitable Banking Corporation Check No. 22711219A dated August 24, 1974 in
the amount of P30,000.00 in payment of an obligation from the Gempesaw Hardware
owned by Marcos Chua; that upon pre-sentation of the above-mentioned check to
the bank for encashment, the same was dishonored for insufficiency of funds and
despite repeated demands made upon said accused to make good the
above-mentioned check, the same refused and failed to make payment, to the
damage and prejudice of the said Gempesaw Hardware owned by Marcos Chua in the
aforementioned amount of P30,000.00."[8]
The
case was docketed in the Court of First Instance of Davao City as Criminal Case
No. 2023.
Upon
arraignment, Daylinda Lagua pleaded not guilty. Thereafter, trial proceeded and
the prosecution adduced its evidence, after which the accused filed a motion to
dismiss the case,[9] claiming that upon the facts adduced in
the case, it would appear that the postdated check was issued in payment of a
pre-existing obligation and, therefore, no estafa was
committed according to the rule enunciated in the cases of People vs. Lilius[10] and People vs. Fortuno.[11]
The
prosecution opposed the motion alleging that the rule stated in the Lilius case had been superseded by Republic Act
No. 4885, so that the crime of estafa is
committed upon the issuance of a postdated check, subsequently dishonored,
whether the issuance be in payment of a pre-existing obligation, or for an
obligation contracted at the time the check was issued, when the issuance is
attended by deceit constituting false pretense or fraudulent act.[12]
The
motion to dismiss the case was denied on December 23, 1975,[13] and the motion for its reconsideration[14] was also denied on February 2, 1976.[15] Whereupon, Daylinda Lagua instituted the present petition.
As
stated, the issue for determination is whether or not the issuance of a
postdated check, which is subsequently dishonored for insufficiency of funds,
in payment of a pre-existing obligation, constitutes estafa as defined and penalized under
Article 315, par. 2(d) of the Revised Penal Code, as amended by Republic Act
No. 4885 and Presidential Decree No. 818.
Prior
to its amendment, Article 315, par. 2(d) of the Revised Penal Code, read:
"Art.
315. Swindling (estafa).- Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
xxx xxx xxx
"2.
By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
xxx xxx xxx
"(d)
By postdating a check, or issuing a check in payment of an obligation the
offender knowing that at the time he had no funds in the bank, or the funds
deposited by him were not sufficient to cover the amount of the check, and without
informing the payee of such circumstances."
Under
said provisions, it was the rule that the mere issuance of a check with
knowledge on the part of the drawer that he had no funds to cover its amount
and without informing the payee of such circumstances, does not constitute the
crime of estafa if the check
was intended as payment of a pre-existing obligation. The reason for the rule
is that deceit, to constitute estafa,
should be the efficient cause of the defraudation and as such should either be
prior to, or simultaneous with the act of fraud.[16]
In
1967, the law was amended by Republic Act No. 4885, eliminating the phrases
"the offender knowing that at the time he had no funds in the bank"
and "and without informing the payee of such circumstances." However,
a presumption was included. The pertinent provisions of the law, as amended,
now reads:
"Art.
315. Swindling (estafa).- Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
xxx xxx xxx
2.
By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
xxx xxx xxx
"(d)
By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not
sufficient to cover the amount of the check. The failure of the drawer of the
check to deposit the amount necessary to cover his check within three (3) days
from receipt of notice from the bank and/or the payee or holder that said check
has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false
pretense or fraudulent act."
A
comparative analysis of the two provisions will readily show that what has been
established under the amendment is the prima facie evidence of deceit constituting false
pretense or fraudulent act in case the drawer fails to deposit the necessary
amount within three (3) days from notice of dishonor from the bank and/or payee
or holder of the check. Likewise, the amendment has eliminated the requirement
under the previous provision for the drawer to inform the payee that he had no
funds in the bank or the funds deposited by him were not sufficient to cover
the amount of the check.[17] Moreover, what is significant to note is
that the time or occasion for the commission of the false pretense or
fraudulent act has not at all been changed by the amendment. The false pretense
or fraudulent act must be executed prior to or simultaneously with the
commission of the fraud. Thus, under 315, paragraph 2(d) of the Revised Penal
Code, as amended by Republic Act No. 4885, the following are the elements
of estafa: (1) post dating or
issuance of a check in payment of an obligation contracted at the time the
check was issued; (2) lack or insufficiency of funds to cover the check; and
(3) damage to the payee thereof. Now, it is asked: Is there deceit and damage
when a bad check is issued in payment of a pre-existing obligation? It is clear
that under the law, the false pretense or fraudulent act must be executed prior
to or simultaneously with the commission of the fraud. To defraud is to deprive
some right, interest, or property by deceitful device.[18] In the issuance of a check as payment for a pre-existing
debt, the drawer derives no material benefit in return as its consideration had
long been delivered to him before the check was issued. In short, the issuance
of the check was not a means to obtain a valuable consideration from the payee.
Deceit, to constitute estafa should
be the efficient cause of the defraudation.[19] Since
an obligation has already been contracted, it cannot be said that the payee
parted with his property or that the drawer has obtained something of value as
a result of the postdating or issuance of the bad check in payment of a
pre-existing obligation.[20]
Finally,
considering the absence of an express provision in the law, the postdating or
issuance of a bad check in payment of a pre-existing obligation cannot be
penalized as estafa by means
of deceit, otherwise, the legislature could have easily worded the amendatory
act to that effect. Since the language of the law is plain and unambiguous, We
find no justification in entering into further inquiries for the purpose of
ascertaining the legislative intent.[21] Moreover, laws
that impose criminal liability are strictly construed.[22] The rule, therefore, that the issuance of a bouncing check in
payment of a pre-existing obligation does not constitute estafa has not at all been altered by the
amendatory act.[23]
The
issue of jurisdiction was also raised by the petitioner in the case of People vs. Sabio, G.R. No. L-45490. It is contended that the
City Court, acting pursuant to its authority to conduct preliminary
investigations, cannot dismiss the case as a motion to quash can only be
availed of in a regular trial where the court has jurisdiction to try the
offense. It is further alleged that the purpose of a preliminary investigation
is merely to determine a probable cause and not to rule on difficult questions
of law. We see no merit in these contentions. There is no dispute that the
information was filed before the City Court for purposes of preliminary
investigation only, as the offense falls under the exclusive jurisdiction of
the Court of First Instance. The check involved amounts to P1,500.00, hence,
the imposable penalty for the offense is prision mayor in its medium period or an imprisonment
ranging from eight (8) years and one (1) day to ten (10) years.[24] Under Section 78 of Republic Act No. 521, as amended by Republic
Act No. 3969, the City Court of Cagayan de Oro City is authorized to conduct
preliminary investigation.[25] When a power is conferred upon a court or
judicial officer, it is deemed that all the means necessary to carry it into
effect are included therein.[26] The
power, therefore, conferred upon the City Court of Cagayan de Oro City to
conduct preliminary investigations carries with it the power to draw a conclusion
after the investigation. It has been held that in the preliminary investigation
proper, the Justice of the Peace may discharge the defendant if he finds no
probable cause to hold the defendant for trial. But if he finds a probable
cause, it is his duty to bind over the defendant to the Court of First Instance
for trial on the merits.[27] Moreover, the purpose of a preliminary
investigation is to secure the innocent against hasty, malicious and oppressive
prosecutions, and to protect him from open and public accusation of a crime.[28] The City Court, therefore, acted within its jurisdiction in
granting the motion to quash the information filed in this case.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:
1.
Dismissing the petition in case G.R. No. L-45490 for lack of merit;
2.
Reversing the decision of the Court of Appeals in case G.R. No. L-45711, and
acquitting the petitioner of the crime charged; and
3.
Dismissing Criminal Case No. 2023, entitled "People vs. Daylinda
Lagua".
No
pronouncement as to costs.
SO ORDERED.
Castro, C.J., Teehankee, Muñoz Palma, Aquino,
Santos, Fernandez, and Guerrero, JJ., concur.
Fernando, J., concurs in L-45711 and L-42971 (Criminal Case No. 2023) but
dissents in L-45490 as explained in a separate opinion.
Barredo, J., concurs and dissents in a separate opinion.
Makasiar, J., joins Justice Barredo in a concurring and dissenting opinion
with Justice Antonio in his dissent.
Antonio, J., dissents in separate opinion re-construction of Art. 315, 29d of
the Rev. Penal Code as amended.
[1] p. 4, rollo of
L-45490.
[2] p. 19, ibid.
[3] pp. 5-7, tsn. of
September 7, 1973.
[4] pp. 7-8, Id.
[5] p. 13, Id.
[6] p. 14, Id.
[7] Decision of the
City Court of Pasay City.
[8] Annex
"E", p. 43, rollo of L-42971.
[9] Annex
"C", p. 17, Id.
[10] 59 Phil. 339.
[11] 73 Phil. 407.
[12] Annex
"F", p. 45, Id.
[13] Annex
"A", pp. 14, Id.
[14] Annex
"D", p. 31, Id.
[15] Annex
"B", p. 15, Id.
[16] People vs. Lilius,
supra; People vs. Fortuno, supra.
[17] Congressional
Record, Senate, Vol. II, No. 37, March 20, 1967, 931-937.
[18] People vs.
Quesada, 60 Phil. 515.
[19] People vs.
Fortuno, supra.
[20] People vs. Lilius,
supra.
[21] Velasco vs. Lopez,
1 Phil. 720.
[22] People vs.
Manantan, 115 Phil. 657; Neidlinger vs. State, 88 S.E. 687; Crawford, The
Constitution of Statutes, 460.
[23] "The
amendment does not seem to have revoked the rule that issuing a bad check in
payment of a pre-existing obligation does not constitute estafa under par. 2(d)." (Aquino,
The Revised Penal Code, Vol. VIII, 1977 ed., 1611)
[24] Art. 315, Revised
Penal Code, as amended by Presidential Decree No. 818, dated October 22, 1975.
[25] "Section 78.
Jurisdiction of the City Court.- The City Court shall have like jurisdiction in
civil and cri-minal cases and the same incidental powers as are at present
conferred by law upon jurisdiction of the municipal courts of capital of
provinces and city courts of chartered cities. It may also conduct preliminary
investigation for any offense, without regard to the limits of punishment, and
may release, or commit and bind over any person charged with such offense to
secure his appearance before the proper court." (Underscoring supplied)
[26] Biron vs. Cea, 73
Phil. 673.
[27] Ngo Hoc vs.
Aquino, 72 Phil. 90; U.S. vs. Banzuela, 31 Phil. 564; Biron vs. Cea, supra.
[28] People vs. Monton,
G.R. No. L-33906, May 23, 1968.
CONCURRING IN L-45711 AND L-42971, BUT
DISSENTING IN L-45490
FERNANDO, J.:
With
due recognition of the merit that attaches to the opinion of the Court, ably
penned by Justice Hermogenes Concepcion Jr., I regret that I cannot yield
concurrence to the conclusion reached by the majority of my brethren: "The
rule, therefore, that the issuance of a bouncing check in payment of a
pre-existing obligation does not constitute estafa has
not at all been altered by the amendatory act."[1] It follows therefore that I must cast a dissenting vote as
far as L-45490[2] is concerned. Notwithstanding the
divergence of view as to the full force and effectivity that in my opinion
should be accorded Republic Act No. 4885, I am in agreement with my brethren
insofar as the reversal of the decision of the Court of Appeals in L-45711[3] and the order of respondent Judge in L-42971[4] for reasons other than that given in the opinion of the
Court. I shall explain why.
1.
It does not admit of doubt that the legislative purpose of Republic Act No.
4885 was precisely to cure an evil prevailing in the business world about the
propensity to issue checks without sufficient funds. The legislative body,
after a thorough consideration of the matter, gave its approval to the
amendment in question as a way to minimize, if not totally eradicate, that
serious malady, the effect of which was to reduce well-nigh to vanishing point
the negotiability of checks. Even if it were admitted that there could have
been a more felicitous choice of language, still this Court, after a more
sympathetic consideration, could have been led, without doing violence to
language, to give it force and effectivity. This excerpt from the recent case
of Bocobo v. Estanislao[5] finds pertinence:
"As noted in Sarcos v. Castillo: 'It is fundamental that once the policy or purpose of the law
has been ascertained, effect should be given to it by the judiciary. From Ty Sue v. Hord, decided in 1909, it has been our constant
holding that the choice between conflicting theories falls on that which best
accords with the letter of the law and with its purpose. The next year, in an
equally leading decision, United States v. Toribio, there was a caveat against a construction that
would tend "to defeat the purpose and object of the legislator." Then
came the admonition in Riera v. Palmaroli, against an application so narrow "as to defeat the manifest
purpose of the legislator." This was repeated in the latest case, Commissioner of Customs
v. Caltex, in almost identical
language.' Such an excerpt was quoted with approval in Automotive Parts and
Equipment Company v. Lingrad. It is of the essence of judicial duty then to construe statutes
to reflect fidelity to such a concept. In the apt language of Frankfurter: ‘A
decent respect for the policy of Congress must save us from imputing to it a
self-defeating, if not disingenuous purpose.'"[6]
2.
The above conclusion, from my standpoint, receives reinforcement from a
fundamental civil law concept that the Court is not to refrain from utilizing a
legal methodology explicitly recognizing the generative capacity of
legislation. In plainer terms, a distinction has been made between the common
law which has traditionally frowned on legislation encroaching on its terrain[7] and the civil law based as it usually is on a comprehensive
code, the result of legislation embodying as much as possible principles of the
widest generality and therefore enabling the judiciary to give it the most
hospitable scope and, if necessary, even a latitudinarian construction. As was
pointed out by Bean: "Civil law theorists, like their Anglo-American
counterparts, have claimed a completeness and universality for their own
principles. Unlike the common law, however, the source of those legal principles
is not judicial precedent, but rather a legislatively enacted civil code. In
orthodox civil law theory, the statute is conceived of as being the most
satisfactory and perfect method of realizing justice,' and as the 'unique
source of judicial decisions.' When no rule can be found which expressly covers
a particular problem, civil law courts seek to discern from a statute or from a
course of legislation, one or more principles which can be applied to
situations substantially similar or analogous to (but not expressly covered by)
the terms of the legislation. The formal concepts, in the German system, have
been explained as follows: 'The principles that are basic to the Code carry the
germ of further development in themselves. This development is by way of analogy. If a case is not regulated in the law but a
legally similar case is regulated, then this provision is decisive in the
deciding of the first case (Gesetzesanalogie) * * *. If no result can be
reached through this process of analogy, then the decision must be drawn from
the spirit of the whole law (Recht) considered as one system (Rechtsanalogie).[8] It would be, in
my view, more consistent with the interpretation of legislation amending the
Revised Penal Code, the Spanish origin of which is still discernible, if that
approach would be followed in the determination of whether or not the amendment
in question really did attain its purpose. From such a standpoint, certainly my
answer must differ from that reached by the majority of my brethren. It may not
be amiss to state that one of the most eminent legal craftsmen to sit in the
United States Supreme Court, the late Justice John Harlan, was partial to this
particular civil law methodology as reflected by his opinions in Welsh v. United States[9] and Moragne v. States Marine Lines, Inc.[10] If even in a
common law jurisdiction, there is receptivity to such a liberal spirit in the
construction of statutes, it would seem to me that there should not be the
least hesitancy on the part of the highest tribunal of this country when it
considers an amendatory act to the Revised Penal Code to manifest a similar
attitude.
3.
In the light of the above, I am left with no choice except to dissent in
L-45490. As far as L-45711 is concerned however, I concur in the decision
reached, as there was no proof of criminal intent on the part of petitioner Tan
Tao Liap. According to the opinion of Justice Concepcion Jr.:
"Subsequently, however, Tan Tao Liap suffered business reverses and so
what he did was to inform Ngo Cheng not to deposit the second and third checks
which were to mature on August 31, 1972 and September 1, 1972, respectively,
because of his inability to raise the amounts to cover said checks. As an
alternative, Tan Tao Liap proposed to pay the balance in monthly installments
of P300.00 until such time that he could raise enough funds. Ngo Cheng,
however, turned down the offer and even told Tan Tao Liap that he was going to
file a criminal case against him if he failed to deposit the amount for the two
remaining checks. At the instance of Ngo Cheng, Tan Tao Liap was charged by the
City Fiscal of Pasay City with the crime of estafa on
January 24, 1973 for issuing the third check (No. 7-442562, dated September 1,
1972, for P3,500.00) which was dishonored for lack of funds."[11] An acquittal is certainly called for, it being evident that
the element of mens rea was conspicuous by
its absence.
I
am likewise persuaded to concur in L-42971 due to a circumstance which for me
militates against the conclusion that there was criminal intent. From the
opinion of the Court, it would appear that the prosecution had rested its case.
Then came a motion to dismiss. It was denied. To my mind, however, the very
fact of compelling a debtor to issue a post-dated check should be construed as
a sufficient warning to the creditor that the former might not be able to honor
his commitment. To give him thereafter the right of harassment, thus
transforming the prosecutor's office into a collection agency and enlisting the
aid of the judicial branch, runs counter to my understanding of what a penal
statute stands for. The very pressure exerted by the creditor could suffice to
deprive effectively the freedom of choice on the part of a debtor hard-pressed
to keep his business going. That does not give rise, in my view, to that degree
of culpability that calls for criminal liability. Hence my concurrence.
[1] Opinion of the
Court, 13.
[2] People of the
Philippines v. Hon. Jose Sabio, Jr., et al.
[3] Tan Tao Liap v.
Court of Appeals.
[4] Daylinda A. Lagua
v. Hon. Vicente M. Cusi, Jr., et al.
[5] L-30458, August
31, 1916, 72 SCRA 520.
[6] Ibid, 524-525. Ty
Sue is reported in 12 Phil. 485; Toribio in 15 Phil. 85 (1910); Riera in 40
Phil. 105 (1919); Caltex in 106 Phil. 829 (1959); Automotive Parts, L-26406,
October 31, 1969, in 30 SCRA 248. The citation from Justice Frankfurter comes
from Nardone v. United States, 308 US 338, 341 (1939).
[7] Cf. Pollock,
Essays in Jurisprudence and Ethics 85 (1882) and Pound, Common Law and
Legislation, 21 Harv. Law Rev. 383 (1908).
[8] Bean, The
Legitimacy of Civil Law Reasoning in the Common Law, 82 Yale Law Journal 258,
265-266 (1972). The quotation is from Charmont & Chausse in their
Commentary on the French Civil Code as quoted in A. Von Mehren, The Civil Law
System: Cases and Materials for the Comparative Study of Law 60 (1957).
[9] 398 US 333 (1970).
[10] Ibid, 375.
[11] Opinion of the
Court, 5-6.
CONCURRING AND DISSENTING OPINION
BARREDO, J.:
I
dissent because I believe that the doctrine on which the majority opinion
predicates its conclusion in all these three cases bears reexamination and
should in fact be abandoned. With particular reference, however, to G.R. No.
L-45711, I concur in the acquittal of the petitioner Tan Tao Liap on other
grounds hereunder stated.
To
my mind, the proposition that the issuing of a bouncing check in payment of a
pre-existing obligation is not estafa is
as inaccurate in theory as it is unrealistic. It is not in accord with the
juridical concept of criminal fraud; it ignores the injury to the public
interest involved in the impairment of the acceptability and negotiability of
checks as an instrument of trading and commerce, which can conceivably
approximate the economic havoc that could arise from loss of confidence in
treasury notes as legal tender.
I
am almost certain that the whole business community in the Philippines will be
shocked by the seeming apathy of the Court in the face of the widespread clamor
for relief from the appalling situation which bouncing checks have brought
about in our country. Mr. Norberto Katigbak whom the Court has designated
as amicus curiae precisely
to assess Us on the effects of that unquestionably irregular and injurious
practice on commerce and finance has underlined the staggering data that the
amount involved in it had already reached 200 million pesos daily before the
Central Bank banned overdrafts, after which the amount went down to the still
enormous total of from 50 to 80 millions daily, and there is no telling it will
not rise again. To be sure, the Supreme Court is not supposed to yield to the
demands of any particular sector interested in the outcome of a case -- not
even to apparent public opinion -- where the tenor and meaning of existing
legislation does not permit such accommodation. Generally, the needed remedy in
such happenstance would lie within the province of the legislature. But when a
situation that by its nature ought to be covered by the criminal law tends to
turn from bad to worse because of a judicial construction of the pertinent
codal or statutory provisions leaving the door open to the perpetration with
impunity of an act that is within the general character of the prohibited ones,
I feel very strongly that the Court should take a second hard look at its past
pronouncements and try to see if there is, within the ambit of its authority,
any logical and realistic way of meeting the emerging or ensuing evil, playing,
as it were, the role that a legendary little girl did to plug a hole in dikes
of Holland. Indeed, it cannot be doubted that the proliferation of bouncing
checks has been due to the immunity that the doctrine of no-estafa-in-bouncing-checks-issued-in-payment-of-pre-existing-obligations
has created in favor of criminal opportunists. It is high time We examined and
studied such doctrine again to find out if it is really as sound as it should
be and to scuttle it if it is not so.
The
doctrine relied upon by the majority was first enunciated in People vs. Lilius, 59 Phil. 339 thus:
"Inasmuch
as these last three checks Exhibits B, C and F were issued in payment of a
debt, even granting that the appellant issued them without sufficient funds to
cover the amount thereof, and furthermore, that he acted fraudulently in
issuing them, such act does not constitute the offense of estafa. The appellant obtained nothing under
said checks. His debt, for the payment of which said checks were issued, had
been contracted prior to such issuance. Hence the deceit, if there was any in
the issuance of the questioned checks, did not precede the defraudation. On the
other hand, the record does not show that the debt had been contracted through
fraud. (Decisions of the Supreme Court of Spain of December 18, 1889, June 9,
1891, and January 16, 1906.)"
Later,
in People vs. Quesada, 60 Phil. 515, the ruling was:
"Under
the Revised Penal Code postdating a check, or issuing it in payment of an
obligation, the offender knowing that at the time he had no funds in the bank,
or the funds deposited by him in the bank were not sufficient to cover the
amount of the check, and without informing the payee of such circumstances (Posfechando un cheque, o
librandolo contra un banco en pago de una obligacion, sabiendo que al tiempo de
hacerlo no tenia fondos, o no los tenia suficientes en dicho banco, sin
advertir de tales circunstancias al tomador) is not a crime in itself. It is a part of article 315, which
defines and punishes various forms of estafa or
swindling. The payee or the person receiving the check must be defrauded by the
act of the offender (article 315, No. 2 [d], Revised Penal Code). To defraud is
to deprive of some right, interest, or property by a deceitful device, and No.
2 of article 315 provides that the false pretenses or fraudulent acts therein
mentioned must be executed prior to or simultaneously with the commission of
the fraud."
Still
later, in People vs. Fortuno, 73 Phil. 407, it appeared that appellant "Fidel Fortuno
rented from 'El Hogar Filipino' a room in the Crystal Arcade; and the rental
having become due, he issued in favor of the latter a check for P60 drawn
against the Bank of the Commonwealth. This check was, upon presentation to the
bank for payment, dishonored for lack of funds." Holding that there was
no estafa under these
circumstances, this Court ruled:
"The
issuance of a check with knowledge on the part of the drawer that he has no
funds to cover its amount and without informing the payee of such circumstance,
does not constitute the crime of estafa if
the check was intended as payment of a pre-existing obligation, as in the
instant case. The reason for this rule is that deceit, to constitute estafa, should be the efficient cause of the
defraudation and as such should either be prior to, or simultaneous with, the
act of fraud. (Cf. People vs. Lilius, 59 Phil., 339, 342; People vs. Quesada, 60 Phil., 515, 520.)"
Accordingly,
the majority now holds that "(S)ince (in the circumstances contemplated)
an obligation has already been contracted, it cannot be said that the payee
parted with his property or that the drawer has obtained something of value as
a result of the post-dating or issuance of the bad check in payment of a
pre-existing obligation."
In
other words, the majority asserts in effect that when a check issued in payment
of a pre-existing obligation bounces, the payee suffers no defraudation. I
submit that such view does not conform with the more realistic juridical
concept of defraudation in the jurisprudence on estafa, which is undoubtedly more in consonance with the moral
implications of the admittedly deceitful act involved and, importantly, with
the negotiability and acceptability that checks should maintain as an indispensable
instrument of convenience and security in trade and commerce.
There
can be no debate in that the "postdating or issuing of a check in payment
of an obligation when the offender had no funds therein, or his funds deposited
therein were not sufficient to cover the amount of the check" is a false
pretense or a fraudulent act, which in itself is already something to abhore.
It is so characterized by Article 315, 2 (d) of the Revised Penal Code. This
truth notwithstanding, the existing jurisprudence in this Court which the
majority wants to perpetuate holds that there is no estafa when the obligation that is paid
is a pre-existing one, for two reasons: (1) In such an instance, there is no
damage or injury caused to the creditor and (2) the damage or injury that might
be suffered by the payee, if any, would always be subsequent to the issuing of
the check, hence the defraudation would not be prior to or simultaneous with
the false pretense of issuing a worthless check as required by the text of the
first part of Article 315, 2 (d) quoted in the majority opinion.
I
cannot agree. As I see it, the flaw in such holding springs from the fact that
it unnecessarily relates the requisite defraudation or damage only and
exclusively to the pre-existing obligation, which naturally precedes the
issuing of the check and remains in a general sense unaffected by its bouncing.
Thus, it is argued in some quarters that the issuing of a check in payment of a
pre-existing obligation is just the equivalent of drawing and issuing a
promissory note, which when unpaid on its due date gives rise to only a civil
liability.
I
do not see it that way. When someone makes a promise to pay a pre-existing
obligation on a given date, whether such promise be verbal or in writing -- as
in a promissory note -- it is obvious that the creditor takes it as nothing
more than an assurance -- let us concede -- based however on a mere expectancy,
such that when the expectancy fails to materialize and the debtor does not pay,
the creditor does not feel deceived, even if he is naturally disappointed.
Indeed, the creditor may in such event even suffer some kind of damage, as,
when in anticipation of the promised payment, he contracts his own obligations
predicated on the fulfillment of the promise and then he cannot comply because
the promised payment does not materialize. Still, there would be no estafa, simply because in that case, there is
no deceit but only the frustration of a hope born of the best of intentions.
But
there is no parity between a promissory note, on the one hand, and a check, on
the other. A check is a formal and definite representation that the drawer has
money in the bank sufficient to cover the amount thereof on the date appearing
thereon or whenever it should be duly presented to the bank for encashment. It
does not merely connote an expectancy, it is a positive assertion of a fact, in
the sense of an unconditional or absolute assurance that there would not be any
hindrance to its being honored by the drawee bank. This fundamental point is to
me self-evident.
Now,
as I have already stated, the act of issuing a check when the drawer knows he
does not have sufficient funds that can cover the amount thereof in the bank
constitutes deceit, a false pretense, a fraudulent act. Under the law, all that
is needed to make it criminal and a estafa is
that there be proof of damage. And in this regard, the majority holds that
"in the issuance of a check as payment for a pre-existing obligation, the
drawer derives no material benefit in return as its consideration had long been
delivered to him before the check was issued", for which reason, following
Lilius, Quesada and Fortuno, it is claimed there is no estafa, since "the issuance of the check
was not a means to obtain a valuable consideration from the payee."
Again,
I disagree. The majority's pose ignores the rule long settled in this
jurisdiction -- as early as 1907 -- that damage in estafa does not have to be either pecuniary or material.
Disturbance of property rights is enough. (United States vs. Goyonochea, 8 Phil. 117; United States vs. Malong, 36 Phil. 821; United States vs.
Sevilla, 43 Phil. 186 and People vs. Santiago, 54 Phil. 814.) In Santiago, supra, there was a reverse situation, because it was
the accused who thru false pretenses was able to secure a check which however
he never cashed or used. The Court held that although the check was not cashed,
there was damage sufficient for estafa since
in the meanwhile before the check could be cancelled, the drawer was unable to
make use of the amount covered thereby, which is a realistic view. Now,
similarly, it cannot be disputed that the receipt of a check by any person in
payment of an obligation creates a new situation in the property rights of the
recipient not only in relation to the satisfaction of the very obligation
supposed to be paid but also in his other transactions and activities which
somehow might have been made to depend precisely on the encashment of the
check. The subsequent realization that the check is worthless correspondingly disturbs
that situation. Thus, as very wisely held in the cases just cited, it cannot be
truly said that the creditor is not damaged by the deceitful act of issuing the
check with knowledge that it is worthless. I should also add importantly it is
not necessary that some material benefit should have been derived by the debtor
from his fraudulent act. According to Viada, quoting from the decision of the
Supreme Court of Spain of April 7, 1888:
"CUESTION 2. Sera condicion precisa del
delito de estafa que con ella logre su autor un lucro determinado, o
bastara que con la misma se haya inferido un perjuicio a otra persona? -El
Tribunal Supremo ha declarado que basta esto ultimo: 'Considerando que no es
condicion integrante del delito de estafa que su autor reporte para
si propio determinado o conocido lucro, sino que se realiza siempre que por
virtud de engaño generico o especifico, o de acto estimado por la Ley
equivalente, se causa intencionalmente perjuicio a otra persona en su
patrimonio, etc.' (S. de 17 de Abril de 1888, Gaceta de 4 de agosto. )" (6
Viada, Codigo Penal Comentado, 374.)
In
other words, the defraudation in the estafa thru
fraudulent acts defined in the Penal Code does not necessarily refer to the
taking by the accused from the offended party of anything as long as the latter
suffers some kind of damage in consequence of his false pretense.
Stated
otherwise, my fundamental position is that the Court does not have to adhere to
the precedents in Lilius, Quesada and Fortuno, but on the contrary, should
overrule them, because the damage or injury that should be the criterion in
determining whether or not there is estafa when
a bouncing check is issued in payment of a pre-existing obligation need not be
that related to the pre-existing obligation but rather, to that suffered by the
creditor subsequent to the issuing of the check. Under this view, it is obvious
that as required by Article 315, 2 (d), the false pretense or fraudulent act of
issuing the fundless check is prior to the damage or defraudation.
It
is to me inconceivable that with all the care, wisdom and perspicacity that
went into the preparation of the Revised Penal Code, such a widely known
malpractice of issuing bouncing checks necessarily causing damage to the
parties concerned, if only in the disturbance of their property rights, could
have been left out without any punitive sanction by the lawmakers, thereby
deliberately leaving the same not only unpunished but, on the contrary,
encouraged, to the great detriment of the commercial and banking community. I
deny that those who framed the Revised Penal Code could have been guilty of
such an unpardonable omission, especially when it is considered that precisely
to be sure that no fraudulent act should escape due punishment, in Article 318,
the Code expressly penalizes "any person who shall defraud or damage
another by any other deceit not mentioned in the preceding articles of this
chapter". In other words, read properly, the Revised Penal Code punishes
as estafa all kinds of frauds
and false pretenses causing damage to another. In my humble view, therefore,
the seeming impotency today of those aggrieved by the issuance of bouncing
checks to prosecute those responsible therefor is not in truth due to any fault
of those who made the law. It is the jurisprudence -- faulty, in my considered
opinion -- the majority is upholding that is to blame. In a word, the remedy is
in Our hands. I cannot see any reason why We cannot act accordingly, when it is
part of Our responsibility to see to it that the laws are construed and
interpreted to enhance and protect the public interest. It is high time We tore
down the sanctuary We have accorded veritable estafadores and engañadores thru Our decisions in the past, unless We
are prepared to be entrapped in a pocket of quicksand of Our own making.
The
foregoing discussion makes it unnecessary for me to elucidate at length on the
effects of the so-called Padilla amendment. I can only say that said amendment
has correspondingly facilitated the prosecution of any violation of Article
315, 2 (d) by providing for a presumption of bad faith in the event a check is
not made good within the three-day period therein prescribed, where the payee
has not been duly advised, upon its issuance, of a possibility that the same
might not be fully funded. But it is not very clear to me that the presumption
it has thus created can be deemed to retroact to the time of the contracting of
the preexisting obligation, as seems to be the theory being upheld in some
respectable sectors of the judiciary and of the bar.
My
vote, therefore, is to grant the petition in G.R. No. L-45490 and to order
respondent court to proceed with the trial of the accused, Ranulfo M. Salazar,
for estafa under Article 315,
2 (d) as construed above; and to deny also the petition in G.R. No. L-42971 and
to sustain the order of denial complained of.
In
G.R. No. L-45711, I concur in the judgment acquitting the petitioner Tan Tao
Liap, not because of the doctrine of pre-existing obligations but on the ground
that his issuance of the checks in question was practically the product of
coercion and so, faced with the inability to make good two of said checks, he
frankly informed the payee, his creditor, before the latter could negotiate the
same, of the business reverses he had suffered, thereby showing good faith.
There was actually no deceit in this case.
Makasiar J., concurs.
DISSENTING OPINION
ANTONIO, J.:
I
dissent for the following reasons:
The
decision of the Supreme Court of Spain of December 18, 1889, which was the
basis of the rule enunciated in People v. Lilius[1] that the deceit must precede and be the efficient cause of
the def-raudation, was actually predicated on the provisions of Article 548 of
the Spanish Penal Code. The same is true with the decisions of the Supreme
Court of Spain of June 9, 1891 and January 16, 1906, cited in the Lilius case.
Article
548 of the Spanish Penal Code states:
"1.° El que defraudare a
otros usando de nombre fingido, atribuyéndose poder, influencia o cualidades
supuestas, aparentando bienes, crédito, comision, empresa o negociaciones
imaginarias, o valiéndose de cualquier otro engaño semejante que no sea de los
expresados en los casos siguientes."
The
afore-cited paragraph 1 of Article 548 of the Spanish Penal Code is the same as
paragraph 1 of Article 535 of the Penal Code of Spain which was in force in the
Philippines until the Penal Code was revised. Article 535, paragraph 1 of the
Penal Code provides:
"The
penalties prescribed by the next preceding article shall be imposed upon:
(1)
Any person who shall defraud another by the use of any fictitious name, or by
falsely pretending to possess any power, influence, qualification, property,
credit, agency, or business, or by means of any similar deceit other than those
hereinafter enumerated."
The
same penal proviso is now embodied in paragraph 2(a) of Article 315 of the
Revised Penal Code which provides:
"2.
By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with
the commission of the fraud:
(a)
By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions;
or by means of other similar deceits." (Italics supplied.)
This
is the class of estafa committed through
fraudulent means, to wit, use of fictitious names, etc. in order to obtain gain
or advantage. As a general rule, in order to constitute deceit there must be a
false representation to a matter of fact, a positive assertion of
falsehood—which false statement or fraudulent representation must necessarily
be made prior to or simultaneously with the delivery of the property, it being
essential that such deceit, or fraudulent representation constitute the very
cause or the only motive which induces the offended party to part with the
thing.
Thus,
delivery by the drawer to the payee of a fictitious draft with a fixed period
for payment in exchange for a sum of money received from the latter, the drawer
having neither credit nor funds at the place and with the person against whom
the bill is drawn, payment being refused upon due presentation, was held
as estafa under Article 535,
No. 1, of the old Penal Code penalizing fraud thru false pretenses.[2] Similarly, where checks are issued by the defendant and he
receives the money for them, and then he stops payment on the checks and does
not return the money, and at the time he cashed the checks he intended to stop
payment on them, the same was also considered as estafa under the same penal provision.[3] The Court also considered the following as instances
of estafa under false
pretenses, viz.: (a) where one signs a
check with a fictitious name, falsely pretending that said check could be
encashed, and then on the strength of such false pretense, obtains from the
offended party money in exchange for the worthless check, he is guilty of estafa under the aforesaid article;[4] or (b) where a person falsely signs a check as an
unremarried widow for the purpose of encashing a U.S. Veterans pension check,
although her right to the pension has been extinguished because of her
remarriage, she is also guilty of estafa under this article.[5]
Since
the issuance of worthless checks in exchange for cash or other valuable
consideration was already considered as estafa under false pretenses defined in
paragraph 1 of Article 535 of the Penal Code which was in force in the
Philippines, it would therefore be more in conformity with logic and sound
reason to conclude that Act No. 3313 which was approved on December 3, 1926 was
intended to cover other fraudulent acts. Act No, 3313 was incorporated as
paragraph 10 of Article 535 of the old Penal Code. It provides thus:
"Art.
535. The penalties prescribed by the next preceding article shall be imposed
upon:
xxx xxx xxx
10.
Any person who in his own name or as an officer or member of a corporation,
entity, or partnership shall issue a check or any other commercial document against a bank established
or that may hereafter be established in these Islands in payment of a debt, or
for any other valuable consideration knowing that he does not have at the time
of its issuance sufficient provision of funds in the bank to cover its amount, or, having such funds, shall maliciously and
feloniously sign his check differently sum the signature registered at the bank as his authentic signature, in order that the bank
shall refuse to pay the same; or shall issue a postdated check and at the date set for the
payment of it, the drawer of the check does
not have sufficient deposit
in the bank to pay for the check. And any person who shall endorse in his own
name or as an officer or member of a corporation, entity or partnership a check
or any other commercial document payable upon demand or at some subsequent
date knowing that the drawer of the instrument does not have sufficient
funds in the bank
against which it was drawn." (As added by Act No. 3313. Italics supplied.)
A
careful analysis of the provisions of paragraph 10 of Article 535 will indicate
that the estafa defined and
penalized under paragraph 10 is distinct and different from the estafa thru false pretenses defined and
penalized in paragraph 1 of the same article. Thus, under paragraph 10 of
Article 535, "the issuance of a check or any other commercial document
against a bank * * * in payment of a debt, or for any other valuable consideration", where the person issuing it (1) knows that he does not have at the
time of its issuance sufficient funds in the bank to cover the amount of the check; or (2) having
such funds, shall maliciously and feloniously sign his check differently from the
signature registered at the bank as his authentic signature, in order that the bank shall
refuse to pay the check; or (3) postdates the check, and "at the time set for the
payment of it, the drawer
of the check does not have sufficient deposit in the bank to pay for the check" constitutes swindling or estafa and, therefore, subject to penal
sanctions. The phrase "in payment of a debt" presupposes the existence of a prior obligation for the
extinguishment or payment of which the check is issued. The fraud, therefore,
consists in the fraudulent payment of the obligation, not in the contracting of
the obligation. The false pretense or fraudulent act of issuing the worthless
check to pay the obligation precedes the damage, which precisely materialized
upon the dishonor of the check.
The
Code Committee, in revising the Spanish Penal Code on estafa, placed paragraph 10 of Article 535 of the old
Penal Code as Section 2, paragraph (d) of Article 315 of the Revised Penal
Code. The phrase "in payment of a debt, or any other valuable
consideration" in Act No. 3313 was simplified by the Code Committee and substituted with the phrase "in payment of an
obligation".
However,
in People v. Fontana,[6] citing People v. Quesada,[7] and People v. Lilius, supra, it was held that the issuance of a worthless
check intended as payment of a pre-existing obligation is not estafa, as the deceit should be the efficient
cause of the defraudation and as such it must be prior to or simultaneous with
the commission of the fraud.
It
was precisely to rectify this anomalous situation that Senate Bill No. 413 was
introduced by Senator Ambrosio Padilla. Thus, the explanatory note of Senate Bill No. 413 reads:
"The
issuance of checks as negotiable instruments has been abused by persons who
have no bank deposits or have insufficient funds to cover the amounts of said
checks. This bad practice has been utilized by drawers of checks to defraud innocent payees or indorsees. It disturbs
banking transactions. It impairs the negotiability of checks. It is true that a
check may be dishonored without any fraudulent pretense or fraudulent act of
the drawer. Hence, the drawer is given three days to make good the said check
by depositing the necessary funds to cover the amount thereof. Otherwise,
a prima facie presumption
will arise as to the existence of fraud, which is an element of the crime
of estafa.
"The
public interest, particularly the regularity of commercial payments thru checks, would justify the immediate approval of this
bill." (Italics supplied.)
In
his brief sponsorship speech, Sen. Padilla stated:
"In
the same vein, it has been held that if the check is used in payment
of an existing obligation,
it can not be considered as estafa, even if the obligor had the fraudulent intent of issuing a check
without funds and he knows that his check will be dishonored by the drawee
bank. Now, this practice of issuing bouncing checks has had a very deleterious
effect on our commercial transaction(s). As a matter of fact, even tax obligations are being paid by taxpayers whose checks
are not good. And it has been reported once that even the Bureau of Internal
Revenue has received a number of checks amounting to substantial amounts which are covered by bad checks, and the drawers of these checks are really
animated by fraudulent intent to deceive the payee, to disturb banking transactions and to impair the negotiability and
acceptability of checks as
negotiable instruments.
"I
was paying once certain fees to the City of Manila with my check, thru a messenger and I was informed that my
check, or other checks of the same import, would not be acceptable because the
fees should be paid in cash.
I believe that this is not a good practice, because we should encourage the use
of checks. However, if the use of checks can be abused and misused without any liability on the part of the
drawer and to the great prejudice of the payee, then this obnoxius practice of not accepting checks even in the payment of taxes and fees may become the rule.
"So.
Mr. President, I submit that public interest, particularly the regularity of commercial
payments by checks, would justify the
amendment of Article 315, Section 2, paragraph (d) of the Revised Penal Code as
proposed in this bill." (Congressional Record of the Senate, Vol. II, No.
37, p. 932; pp. 2-3 of xerox copy of Congressional Record submitted by the Solicitor
General, Italics supplied.)
"Senator
Padilla: * * * The intention precisely is to discourage persons from
making use of this device of
issuing checks — not to pay their just obligations but to embarrass the payee as well as
commercial transactions." (at p. 935, see p. 9 of xerox copy of
Congressional Record submitted by the Solicitor General; Memorandum of Amicus
Curiae, pp. 12-13. Italics supplied.)
It
was, therefore, obvious from the discussions on the floor of the Senate that it
was the intention of Congress to eliminate the two defenses available under the
old provision which practically nullified the penal sanction of estafa thru the issuance of bouncing
checks, to wit: (a) that the check was issued in payment of a pre-existing
obligation; or (b) that the drawer of the check informed the payee that his
funds deposited in the bank may not be sufficient to cover the amount of his
check. The clear legislative intent was to penalize as estafa not only the issuance of a worthless check
at the time of contracting an
obligation, but also the payment in a fraudulent manner of an obligation already existing.
The provision in question is not only concerned with the offense of obtaining
money or property by false pretense. The making or uttering of the check and
its dishonor is sufficient. For defraudation can take place not only at the
time of contracting the obligation, but also at the time it is supposed to be
paid. This fact is reflected by the procedural rule that the venue for the
crime of estafa may be either
in the place where the obligation was contracted or in the place where the
check is dishonored. To hold that it is only the issuance of a bouncing check
at the time of contracting
the obligation that is punishable under paragraph 2(d) of Article 315 of the
Revised Penal Code would render this provision as a mere surplusage, because
this overt act is already covered by paragraph 2(a) of the same Article 315.
Senate
Bill No. 413, as approved by the Senate and concurred in by the House of
Representatives, was signed into law by President Ferdinand E. Marcos on June
17, 1967, and became Republic Act No. 4885. Subsequently, on October 22, 1975,
President Marcos promulgated Presidential Decree No. 818, increasing the
penalties for estafa committed
thru the issuance of bouncing checks.
The
provisions of paragraph 2 of Article 315 of the Revised Penal Code, invoked as
the basis of the contention that the check should be issued and delivered prior
to or simultaneously with the contracting of the obligation, states: "By
means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with
the commission of the fraud." It must be noted
that the phrase "that the obligation must be contracted at the time of the issuance of the check"
does not appear in any text of the law.[8]
The
term "fraud", in its general sense, is deemed to comprise anything
calculated to deceive, including all acts, omissions, and concealment involving
a breach of legal or equitable duty, trust, or confidence justly reposed,
resulting in damage to another, or by which an undue and unconscientious
advantage is taken of another.[9] The term "commission of the fraud" means the "swindling" or defraudation of the victim, who is the payee of the
bouncing check. The word "fraud" does not refer to the "false pretense or the
fraudulent act", for that would
be redundancy or surplusage.
The
contracting of an obligation necessarily carries with it a promise to pay such obligation. Thus, when a
person borrows money from another or purchases a thing on credit, he does so
always with the promise to pay the debt or the article purchased. This promise
may be an honest one, made in all good faith, with the clear intention of
fulfilling it. Thus, if such good faith is shown, mere delay or inability to
pay later on due to unavoidable circumstances on the part of the debtor does
not make him criminally liable for estafa. On the other hand, the promise may be a fraudulent one, made in
bad faith, with no intention to pay the debt at all, even from the beginning.
In such a case, the promise is a mere false pretense, a positive assertion of falsehood to induce
the creditor to lend the money or the trader to deliver the goods. This
"false pretense" would be prior to or simultaneous with the
contracting of the obligation. There cannot be any doubt that in such a case,
the false pretense may be considered as the very cause or the only motive which
induced the offended party to part with the thing. This could be a case
of estafa under Article 315,
paragraph 2(d) of the Revised Penal Code.
But
fraudulent intent may not be easily ascertainable, in the absence of any overt
act. Since fraud is a state of mind, it need not be proved by direct evidence
but may be gathered from the nature of the act or from the circumstances of the
case. Indeed, the character of the promise depends on the intention, the good
or bad faith of the promissor, which, being subjective, is incapable of direct
proof. There is no question that the legislature may, by appropriate
legislation, create rules of evidence under which natural inferences from
certain facts may become presumption of law. For example, the failure of a public officer to have duly
forthcoming any public funds or property of which he is chargeable, upon demand
by any duly authorized officer, is considered prima facie evidence of malversation.[10] Hence, the second sentence of paragraph 2(d) of Article 315
supplies the legal presumption which would show prima facie that the promise made upon contracting
the obligation is a mere false pretense or a positive assertion of a falsehood.
The rule under paragraph 2(d) of Article 315 that "the failure of the
drawer of the check to deposit the amount necessary to cover his check within
three (3) days from receipt of notice from the bank and/or the payee or holder
that said check has been dishonored for lack or insuffiency of funds shall be prima facie evidence of deceit" is a rule of
evidence and no more. It is intended to provide for prima facie evidence for the prosecution in such a
way that whenever a person issues a postdated check or a check when he had no
funds in the bank or his funds are insufficient to cover the check, and fails
to make good the check within three (3) days from receipt of the notice of
dishonor---the law creates the presumption that he acted with deceit or fraudulent intent. There cannot be any
doubt also that the legislature may penalize the issuance of worthless checks,
although the payee takes the check in payment of a pre-existing debt. This is
precisely the purpose of this amendment which was enacted in furtherance of the
public policy regarding this special sort of commercial fraud. The dishonor of the check in either case is the
consummation of the defraudation or the commission of the fraud, within the intendment of the requirement that
the "false pretense or fraudulent acts must be executed prior to or
simultaneously with the commission of the fraud."
It
has been argued that there could not be estafa because
the offended party does not suffer any damage as a result of the dishonor of
the check, as the existing obligation is not discharged. It can scarcely be
argued with reason that under such circumstances, the crime of the offending
party would, in any wise, be lessened because of the fact that the existing
obligation is not extinguished. The issuance of the worthless check serves the
purpose of delaying any action on the transaction, and constitutes at least a
detriment or prejudice to the payee of the check. It is possible that the payee
may deposit the same and, relying thereon, issue his own check to a third party
in connection with a transaction or agreement which he may have had with the
latter. It is not difficult to perceive the mischievous results that may ensue
from the dishonor or rejection of the first check. His own check may bounce as
a result thereof, rendering him liable for any damage or prejudice which the
third party may suffer as a consequence. It has been held that a check implies
a contract on the part of the drawer that he has funds in the hand of the
drawee for its payment or presentation.[11] It cannot be
questioned that the dishonor of a merchant's or trader's check is tantamount or
analogous to a slander of his trade or business, imputing to him insolvency or
bad faith.[12]
In
any event, as early as March 22, 1907, this Court held that mere
"disturbance" in property rights "constitutes real and actual
damage, and is positive enough under a rule of law to produce one of the
elements constituting the crime of estafa.[13] Again, in a subsequent case promulgated on August 30, 1917,
this Court reiterated the principle in Goyenechea that mere disturbance of the
property rights of the complainants is considered real and actual damage within
the intendment of the penal law on estafa.[14] The same principle was re-affirmed in People v. Santiago,[15] where this Court
stated:
"The
appellant contends that as the check was not cashed by the Bank of the
Philippine Islands, and no attempt was made to cash it, no crime has been committed.
The check issued to the defendant by the offended party was payable to 'cash',
and therefore, negotiable. While the defendant had said check in his
possession, the offended party could not dispose of the amount for which it was
made out, and this was, at least, temporary prejudice sufficient to
constitute estafa (U.S. vs. Goyenechea, 8 Phil. 117; U.S. vs. Malong, 36 Phil. 821)." (At p. 816).
Statistically,
the greater bulk of dishonored checks consists of those issued in payment of
pre-existing obligations. It was obviously because of this that the President
of the Philippines promulgated Presidential Decree No. 818, increasing the
penalty for estafa committed
under paragraph 2(d) of Article 315 of the Revised Penal Code. To quote
pertinent portions of the decree, particularly the "whereases":
"WHEREAS,
reports received of late indicate an upsurge of estafa (swindling) cases committed by means of bouncing
checks.
"WHEREAS,
if not checked at once, this criminal act would erode the people's confidence
in the use of negotiable instruments as a medium of commercial transaction and
consequently result in the retardation of trade and commerce and the
undermining of the banking system of the country.
"WHEREAS,
it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the existing
penalties provided therefor. * * *."
According
to Mr. Norberto Katigbak, a well known financial columnist who appeared as
"amicus curiae",
the approximate total value of bouncing checks per day was close to 200 million
pesos, and thereafter when overdrafts were banned by the Central Bank, it
averaged between 50 million to 80 million pesos a day. According to him, the
great volume of bouncing checks has made access to credit more difficult, hampered
the expansion of business, and disrupted normal business transactions, with
consequential serious repercussions on the economy; thus the explanatory note
in Senate Bill No. 413, in P.D. No. 818, that "the issuance of checks as
negotiable instruments have been abused by persons who have no funds or insufficient funds * * * to
defraud innocent payees * * *". These practices disturbs banking
transactions. It impairs the people's confidence in the use of negotiable
instruments as a medium of commercial transaction and consequently results in
the retardation of trade and commerce, and the undermining of the banking
system. The public policy, in furtherance of which Republic Act No. 4885 was
enacted, is therefore clearly manifest.
The
first and fundamental duty of the courts is the application of the law
according to its express terms, interpretation being called for only when such
literal application is impossible. The construction of the statute should be
made with reference to its purpose, and in harmony and in conformity therewith,
in order to aid, advance, promote, support and effectuate such aim, motive,
aspirations or object. A construction which would operate to impair, pervert,
frustrate, thwart, or nullify the very purpose of the statute should be
avoided.[16] This rule is applicable to penal
statutes. Indeed, the canon that penal laws are to be strictly construed “is
not an inexorable command to override common sense and evident statutory
purpose."[17] Certainly, we cannot shut our eyes to
notorious mischiefs which the law is intended to suppress.
At
any rate, it is my considered opinion that the reprehensible act of issuing
bouncing checks, albeit in payment of pre-existing obligations, should not go
unpunished. At the very least, it should be penalized under Article 318 of the
Code, which reads as follows:
"Art
"Art. 318. Other deceits.-- The penalty of arresto mayor and a fine of not
less than the amount of the damage caused and not more than twice such amount
shall be imposed upon any person who shall defraud or damage another by any
other deceit not mentioned in the preceding articles of this chapter.
xxx xxx xxx
The
foregoing section is suppletory to the preceding provisions of the Code
on estafa and should be
applied whenever the elements of deceit and prejudice are present.[18]
Makasiar, J., concurs.
[1] No. 38774,
December 23, 1933, 59 Phil. 339.
[2] U.S. v. Mendezona,
No. 4211, Nov. 18, 1908, 12 Phil. 72.
[3] Article 535,
paragraph 1, of the old Penal Code; U.S. v. Lee Cheng Poe, 39 Phil. 466, No.
13969, Jan. 15, 1919.
[4] People v.
Bisquera, 51 O.G. 248.
[5] People v. Samonte,
L-12733, Apr. 29, 1959, 105 Phil. 1288.
[6] No. 48458, Nov. 7,
1941, 73 Phil. 407.
[7] No. 40846, Sept.
1, 1934, 60 Phil. 515.
[8] Act No. 3313; Act
No. 315, par. 2(d) of Act No. 3815; and Republic Act No. 4885.
[9] 37 Am. Jur. 2d.
19, at Sec. 19.
[10] Article 217,
Revised Penal Code, as amended by Republic Act No. 1060.
[11] Bull v. First Nat.
Bank, 123 U.S. 105, 31 L. ed. 92.
[12] Araneta v. Bank of
America, L-25414, July 30, 1971, 40 SCRA 144.
[13] U.S. v.
Goyenechea, No. 3307, March 22, 1907, 8 Phil. 117.
[14] U.S. v. Malong,
No. 12597, Aug. 30, 1917, 36 Phil. 821.
[15] No. 32455, Aug. 6,
1930, 54 Phil. 814.
[16] 73 Am. Jur. 2d. 360.
[17] Ibid., pp.
456-457.
[18] Decision, Supreme
Court of Spain, July 9, 1896; Hidalgo, Codigo Penal 878.
[ G.R. No. L-57170, November 19, 1982 ]
KO BU LIN, PETITIONER, VS. COURT OF APPEALS AND
PEOPLE OF THE PHILIPPINES, RESPONDENTS.
[G.R. No. L-53663, November 19, 1982]
LOLITA BAÑARES, PETITIONER, VS. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES,
RESPONDENTS.
D E C I S I O N
MELENCIO-HERRERA,
J.:
Separate Decisions of the Court of Appeals are
sought to be reversed through these two appeals by Certiorari filed by petitioners Ko Bu Lin (in G.R.
No. L-57170), and Lolita Bañares (in G.R. No. L-53663), involving Article 315
of the Revised Penal Code on Estafa,
and the doctrine of double jeopardy.
The
Petitions were initially denied by the former First Division of the Court, but,
on Motions for Reconsideration filed by both petitioners, and after referral
of both cases to the Court en banc due to failure to get the concurrence of five members within the
Division, the Court en banc resolved
to give due course.
G. R. No. L-57170
Petitioner
Ko Bu Lin was charged in Criminal Case No. 6959 of the Court of First Instance
of Manila, Branch XL, with Estafa under
the following Information:
"That
on or about the 5th day of May, 1970, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and feloniously defraud
one Go Song Hiap in the following manner, to wit: the said accused, by means of
false manifestations and fraudulent representations which he made to said Go
Song Hiap to the effect that he (accused) has 23,000 bags of cement for sale of
94 pounds each in his bodega at 1332 Tayabas, Manila, all valued at P33,500.00;
that said bags of cement are ready for delivery anytime to the buyer upon
demand and that he (accused) is willing to issue Check No. BA-HO 345479A which
has sufficient funds in the bank of Asia as a cover check to guaranty the
quality of cement which Go Song Hiap may encash on May 25, 1970 if the cement
is not of the standard quality, and by means of other deceits of similar
import, induced and succeeded in inducing the said Go Song Hiap to deliver the
sum of P33,500.00 as payment for the said 23,000 bags of cement, which said accused
received well knowing that he has no cement and that he has no sufficient money
in the bank to back up his cover check which sums of money, once in his
possession, in spite of repeated demands made upon him to return the said
amount of P33,500.00 or deliver the 23,000 bags of cement, he refused and
failed, and still fails and refuses to do so, and instead misappropriated,
misapplied and converted the said amount to his personal use and benefit, to
the damage and prejudice of the said Go Song Hiap in the aforesaid sum of
P33,500.00, Philippine currency."
After
trial, the lower Court convicted petitioner of Estafa under Article 315, 2(d) of the Revised Penal Code (by issuance of
bouncing checks).
On
appeal, respondent Court of Appeals affirmed conviction but penalized the
accused instead under Article 315, 2(a) (thru false pretenses or similar deceits). Two Motions for
Reconsideration having been denied, petitioner interposed the instant appeal
by Certiorari.
G.R. No. L-53663
Petitioner
Lolita Bañares was accused of Estafa in
Criminal Case No. 1772 of the Court of First Instance, Negros Occidental,
Branch III, under an Information reading:
"That
on or about, the 2nd and 3rd week of June, 1974, in the municipality of San
Enrique, province of Negros Occidental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, having received
in trust from one Dolores Centeno assorted jewelries worth P92,100.00 on consignment
basis, with the condition to return the same within one (1) month from receipt
thereof if unsold or the money value of the same if sold, far from complying
with her said obligation, with abuse of confidence and with intent to defraud,
did then and there, wilfully, unlawfully and feloniously misappropriate,
misapply and convert to her own personal use and benefit the proceeds thereof
after said jewelries were sold and disposed of, and in order to cover up her
aforesaid unlawful and felonious act, well knowing that she no longer had any
deposit with the banks herein below mentioned having already closed her account
with said banks issued and delivered to said Dolores Centeno the following
postdated checks drawn against the banks hereinbelow mentioned:
xxx xxx
xxx xxx
xxx xxx
xxx xxx
which
checks, when presented for payment, were dishonored and not paid for the
reason stated in the foregoing, to the damage and prejudice of said Dolores
Centeno in the total amount of NINETY-TWO THOUSAND ONE HUNDRED PESOS
(P92,100.00), Philippine currency."
The
Trial Court convicted her of Estafa under
Article 315 2(d) of the Revised
Penal Code (by issuance of bad checks) as follows:
"IN
VIEW OF ALL THE FOREGOING, the Court finds the accused guilty, beyond
reasonable doubt, of the crime of estafa as
so defined and penalized under Article 315, par. 2(d) of the Revised Penal
Code, as amended by Republic Act 4885 and as further amended by Presidential
Decree No. 818 and sentences her to suffer an indeterminate imprisonment of
Eight (8) years and One (1) day of prision mayor, as minimum, to Twenty-two
(22) years and eight (8) months of reclusion perpetua, as maximum, to indemnify
the offended party in the amount of Ninety Two Thousand One Hundred Pesos
(P92,100.00), without subsidiary imprisonment in case of insolvency, and to pay
the costs."
On
appeal, respondent Court modified the lower Court judgment and convicted her
instead of Estafa under
Article 315, 1(b) (by
misappropriation or conversion). The decretal portion of that Decision
reads:
"WHEREFORE,
this Court finds the appellant Lolita Bañares GUILTY beyond reasonable doubt
for the crime of ESTAFA as
defined and penalized under Article 315, paragraph 1 (b) of the Revised Penal
Code and she is hereby sentenced to suffer the indeterminate penalty of imprisonment
of, from FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as minimum,
to FIFTEEN (15) YEARS of reclusion temporal as maximum, and to indemnify the
offended party in the sum of P92,100.00 but without subsidiary imprisonment in
case of insolvency, and to pay the costs."
After
denial of her Motions for Reconsideration, the accused filed this Petition for
Review on Certiorari.
Petitioner
Ko Bu Lin argues that when he pleaded not guilty upon arraignment, he was
exposed to the jeopardy of conviction of Estafa by
means of false pretenses [Art. 315, parag. 2(a)], or by issuing a check with no
funds [ibid., parag.
2(d)], or both; that the Trial Court's findings appearing in the body of the
judgment that "he cannot be said to have falsely pretended or fraudulently
acted in selling the 23,000 bags of cement to Go Song Hiap" and that
"Article 315, No. 2(a) of the Revised Penal Code does not apply to this
case" exonerated him from the charge of Estafa thru
false pretenses [Art. 315, 2(a)] and was as good as an acquittal although
omitted from the dispositive portion of the Decision; that said acquittal is
final and the Appellate Court cannot therefore be justified in reopening his
acquittal; that because he never disputed said findings of the Trial Court and concentrated
his appeal on his conviction under Art. 315, 2(d), nor did the prosecution appeal from said
findings, the Court of Appeals went beyond the limits of the assigned errors
and the facts upon which conviction was based, thus depriving him of his day
in Court and denying him his right to due process in his appeal.
Petitioner
Lolita Bañares contends that the Information charged her with two separate and
distinct offenses of Estafa: that
defined and penalized under Art. 315, 1(b), Revised Penal Code, or Estafa through misappropriation, and
that defined and penalized under Art. 315, 2(d), Revised Penal Code, or Estafa through issuance of bouncing
checks, thereby, she was already placed in jeopardy of being convicted of both
offenses; that when the trial Court chose to convict her of only the Estafa defined and penalized under Art.
315, 2(d), it necessarily
"impliedly acquitted" her of Estafa under
Art. 315, 1(b), Revised Penal Code; that her said "implied acquittal"
of Estafa through
misappropriation was immediately final; that she appealed only from the
judgment convicting her of Estafa through
issuance of bouncing checks, so, what was opened up for review was only the
case concerning Estafa through
issuance of bouncing checks; that the Court of Appeals went beyond the limits
of its power contrary to the constitutional guarantee against double jeopardy.
The
decisive issue is whether or not respondent Appellate Court erred in convicting
petitioner Ko Bu Lin of Estafa by
means of false pretenses [Art. 315, parag. 2(a)], and petitioner Lolita Bañares
of Estafa by misappropriation
or conversion [Art. 315, parag. 1(b)], when the Trial Courts had allegedly
"impliedly acquitted" them of the said offenses when they were
respectively found guilty of Estafa through
the issuance of bouncing checks [Art. 315, parag. 2(d)].
It
must be conceded that the elements of Estafa committed
by means of the issuance of bouncing checks /Art. 315, 2(d)/, of which
petitioners were convicted by the Trial Court, are different from the elements
constituting Estafa by means
of false pretenses /Art. 315, 2(a)/, of which Ko Bu Lin was convicted by the
Court of Appeals, and from the elements constituting Estafa by means of misappropriation or
conversion under Article 315, 1(b), of which Lolita Bañares was convicted by
the same Appellate Court.
What
is of vital importance to determine is whether or not petitioners were
convicted of crimes charged in the Informations as embraced within the
allegations contained therein. A reading of the Informations yields an
affirmative answer. The Information filed against Ko Bu Lin sufficiently
charges Estafa through false
pretenses. So does the Information filed against Lolita Bañares sufficiently
charge Estafa through
misappropriation or conversion. There was no ambiguity in the Informations, and
the accused could adequately prepare for their defense. Petitioners having been
adequately informed of the nature and cause of the accusation against them,
petitioners could be convicted of the said offenses, the same having been
proved. Petitioners have not been deprived of any constitutional right.
It
is inaccurate for petitioners to contend that the Informations filed against
them exposed them to conviction for two offenses. The Informations are not
duplicitous ones. The fact is that the different means of commission have been
specifically spelled out. As held in the case of Jurado vs. Suy Yan[1] , per Makasiar, J., with almost identical facts as in the Ko
Bu Lin case:
"The
allegations in the information are clear and do not charge the accused with two
offenses. As contended by the City Fiscal of Iligan City, the information
accuses the defendant of only one estafa committed
by false pretenses under paraggraph 2 of Article 315 of the Revised Penal Code,
but specifically describes the false pretenses or deceitful acts employed by
the accused in perpetrating the offense, namely, his falsely pretending to
possess property, credit or business under subparagraph (a) of the aforesaid
paragraph 2 of Article 315 and by postdating a check or issuing such check in
payment of an obligation knowing that he had no sufficient funds in the bank to
cover the amount of the check, without informing the payee of such
circumstances, under sub-paragraph (d) of the same paragraph 2 of Article 315.
It is emphasized herein that subparagraphs (a) and (d) of Article 315 of the
Revised Penal Code are two of the five false pretenses or fraudulent acts that
can be employed and were actually employed in this case by the accused to
commit the one crime of estafa charged
against him in the information."
By
parity of reasoning, the same can be said in Lolita Bañares' case although
separate sections, Article 315, 2(d) and Article 315, 1(b) are involved.
"We
reiterate the earlier jurisprudence that where an offense may be committed in
any of the different modes and the offense is alleged to have been committed in
two or more modes specified, the indictment is sufficient, notwithstanding the
fact that the different means of committing the same offense are prohibited by
separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of
only one offense and the information is not thereby rendered defective on the
ground of multifariousness." (ibid.)
One
of the earlier jurisprudence referred to is U.S. vs. Tolentino[2] , which held:
"It
is a well-settled rule in considering indictments that where an offense may be
committed in any of several nodes, and the offense, in any particular instance,
is alleged to have been committed in two or more modes specified, it is
sufficient to prove the offense committed in any one of them, provided that it
be such as to constitute the substantive offense."
Besides,
the appellants having gone to trial, without objection, on Informations they
allege as charging duplicitous offenses, they may be deemed as having waived
the right secured to them under Section 12, Rule 110 of the Rules of Court.[3]
Invocation
of the constitutional immunity from double jeopardy is misplaced. When the
petitioners appealed from the sentence of the Trial Court, they waived the
constitutional safeguard against double jeopardy and threw the whole case open
to the review of the Appellate Court, which is then called upon to render such
judgment as the law and justice dictate, whether favorable or unfavorable to
them,[4] and whether they are made the subject of
assignments or error or not.[5] Petitioners'
appeal conferred upon the Appellate Court full jurisdiction and rendered it
competent to examine the records, revise the judgment appealed from, increase
the penalty and cite the proper provision of the penal law.[6] Also explicit in this regard is Section 11, Rule 124 of the
Rules of Court:
"Power of appellate Court on appeal.
- Upon appeal from a
judgment of the Court of First Instance, the appellate court may reverse,
affirm, or modify the judgment and increase or reduce the penalty imposed by the trial court,
remand the case to the Court of First Instance for new trial or re-trial, or
dismiss the case." (Emphasis supplied)
A
case in point is that of Lontoc vs. People,[7] aptly cited by
the Solicitor General. In that suit, the accused was charged with having
committed the complex crime of Estafa thru
Falsification of a Public Document. The Court of First Instance found him guilty
only of Falsification thru Reckless Imprudence and sentenced him to suffer 4
months and 1 day of arresto mayor. The
accused appealed to the Court of Appeals which, after reviewing the evidence,
found him guilty of the original charge of Estafa thru
Falsification of a Public Document and sentenced him to an indeterminate
penalty of from 8 years and 1 day to 10 years, 8 months, and 1 day of prision mayor, and to pay a fine of P200.00 and costs. When the
case was elevated to this Tribunal on Petition for Review on Certiorari, the main question of law involved was:
"could the Court of Appeals legally find the appellant guilty of Estafa thru Falsification of a Public
Document as originally charged against him after the lower Court had found him
guilty only of Falsification through Reckless Imprudence, thereby acquitting him of Estafa?"
This Court affirmed the finding of the Court of Appeals and held:
"We
find that the decision of the Court of Appeals convicting the petitioner of the
higher offense with which he was charged in the Court of First Instance is in
accordance with the ruling laid down by this Court in a long line of decisions,
from U.S. vs. Abijan, 1 Phil. 83, to People vs. Olfindo, 47 Phil. 1, which has
been embodied in statutory form in section 11 of Rule 120 above quoted. The
reason behind this rule is that when an accused appeals from the sentence of
the trial court, he waives the constitutional safeguard against double jeopardy
and throws the whole case open to the review of the appellate court, which is
then called upon to render such judgment as law and justice dictate, whether
favorable or unfavorable to the appellant. This rule is too well known for any
lawyer to ignore. But if the numerous cases wherein this Court has convicted
the appellants of a higher offense or has increased the penalty imposed on them
by the trial court, have not been seen by some lawyers for accused-appellants
as a red light indicative of danger or risk, let the bitter experience of the
herein petitioner serve as a perpetual reminder to others to heed the moral lesson
of the proverbs with which this opinion is prefaced."[8]
but
modified the penalty imposed by the Court of Appeals for being erroneous.
The
proposition submitted by petitioner, Lolita Bañares, that the appeal to the
Court of Appeals is "limited only to the judgment or sentence of conviction
and does not affect the implied acquittal, which was immediately final",
is unavailing. The power of the Appellate Court on appeal cannot be thus
constricted. Petitioner's appeal was unqualified.
"x
x x the rule is well-settled that when an accused unqualifiedly appeals from a
sentence of the trial court; as did the accused in this case – he waives the
constitutional safeguard against double jeopardy and throws the whole case open
to the review of the appellate court, which is then called upon to render such
judgment as law and justice dictate, whether favorable to the appellant or
not."[9]
There
was no implied acquittal to speak of, only one offense of Estafa having been sufficiently charged
in each Information. The Information in the Ko Bu Lin case merely speaks of a "willingness"
to issue "a cover check to guaranty the quality of the cement". While
the Information in the Bañares case
alleges that the checks were issued "to cover up a felonious and unlawful
act." Absent is an essential element in Estafa through
the issuance of bouncing checks that the check be issued in payment of an
obligation. But even if there were implied acquittal, following the Lontoc case, the pertinent excerpt from which has been
quoted herein-above, there is no impediment to conviction by the Court of
Appeals even for a higher offense with which an accused has been charged.
For
the same reason neither can petitioner, Ko Bu Lin, successfully claim that he
was "denied due process of law in his appeal because the Court of Appeals
went beyond the limits of his assigned errors and the facts upon which his
conviction under sub-section (d), paragraph 2 of Article 315 of the Revised
Penal Code, as amended, is predicated." As earlier stressed, whether raised
in the assignments of error or not, the entire case is open for full review.[10]
In
sum, respondent Court of Appeals did not err in modifying the respective
judgments of the Trial Courts by finding Ko Bu Lin guilty of Estafa under Article 315 (2)(a), and Lolita Bañares under Article 315 (1)(b), both of the Revised Penal Code.
WHEREFORE, denying petitioners' Motions for Reconsideration, both
Petitions are hereby dismissed, and the sentences of conviction respectively
affirmed, without pronouncement as to costs.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr.,
Plana, Escolin, Vasquez, Relova, and Gutierrez, Jr., JJ., concur.
Makasiar and Guerrero, JJ., joins J. De Castro in his dissenting opinion.
Abad Santos, J., the petition as are based on frivolous
grounds and should have been summarily dismissed. They raised questions similar
to how many angels can stand on the point of a needle.
Aquino, J., no part.
[1] 38 SCRA 663
(1971).
[2] 5 Phil. 682
(1906).
[3] Sec. 12. Duplicity
of offense. - A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a single punishment for
various offense.
[4] People vs. Carreon, 115 Phil. 245 (1962).
[5] U.S. vs. Abijan, 1 Phil. 83 (1902); People vs. Olfindo, 47 Phil. 1 (1924); Suy Sui vs. People, 92 Phil. 685 (1953).
[6] U.S. vs. Abijan, supra.
[7] 74 Phil. 513
(1943).
[8] 74 Phil. 519-520.
[9] People vs. Carreon, 115 Phil. 242, 245 (1962).
[10] Suy Sui vs. People, supra.
DISSENTING OPINION
DE CASTRO, J.:
I
beg to dissent.
To
my mind, the information[*] is a duplicitous one because it charges
two different offenses, namely: (1) estafa by
abuse of confidence, particularly estafa through
misappropriation or conversion under Article 315, paragraph 1 (b) of the
Revised Penal Code; and (2) estafa by
means of false pretenses or fraudulent acts, specifically estafa through issuance of bouncing
checks under Article 315, paragraph 2 (d) of the said Code.
There
seems to be no question that the trial court convicted the accused (petitioner
herein) only of the second charge. As such, having been charged and tried
of estafa on two counts and
convicted only under the second charge, the accused is thereby necessarily,
albeit impliedly, acquitted of the first. When the accused appealed from the
judgment, it could only be from the judgment of conviction, not from that of
acquittal. No one in his right mind would appeal from a decision of acquittal.
Moreover, legally speaking, a decision of acquittal is immediately final,
inappealable and executory. There is nothing more to be done therewith. If no
appeal was taken with respect thereto, then the Court of Appeals had no
jurisdiction to convict and impose the penalty for the said charge.
I
am of the opinion that it is not correct to say that the appeal throws the
whole case open for review, to the extent of giving the Court of Appeals
jurisdiction to convict and impose the proper penalty for the first charge
of estafa. This would be a clear
violation of the right against double jeopardy. There is no waiver either of
this right since the appeal is limited only to the charge of which petitioner
was convicted, as explained above.
What
justifies the rule that an appeal in a criminal case throws open the whole case
for review is that the appeal constitute a waiver of the right of double
jeopardy. However, an appeal from a judgment of conviction as to one offense
would not reopen the judgment of acquittal for another offense charged in the
same information. If in the case cited,[1] for the complex
crime of estafa through
falsification, the judgment convicted the accused only of falsification, but on
appeal, the accused was found guilty of the complex crime of estafa through falsification, this was
legally feasible because only one offense was charged, so the judgment was on
that one complex crime, which may legally be modified, because the judgment, as
modified, will still be the same judgment on the single charge of a complex
crime. It will at once be noted in the case just cited, that the accused
therein was convicted of a lesser offense included within the higher offense of
which the accused was originally charged. In other words, the appellate
jurisdiction of the Court of Appeals to review the case when the right to
appeal is exercised by the accused is limited only to the offense of which he
was convicted and from which judgment he has appealed, excluding the other
offense of which the accused has been acquitted though charged in the same
information, the latter not having been appealed, nor is it included in the
former; it is entirely separable therefrom.
Moreover,
the falsification in the case cited in the main opinion, may be only considered
as the means of committing the estafa,
and is not separable as a simple felony in itself but is always an integral
part of the complex crime of estafa through
falsification. It could be equated to a mere aggravating circumstance, which
even if not found to be existent by the trial court, may be found existent by
the appellate court if the evidence warrants such finding. Thus when it comes
to mere aggravating circumstances, even if the trial court failed to consider
any, the appellate court may do so, even if as a result the penalty would be
raised by the appellate court. This is not violative of the principle against
double jeopardy, and the appellate court may increase the penalty, there being
a waiver of the right by the appeal taken by the accused, and the case is
thrown open for a complete review without violating the double jeopardy rule.
But
if by way of illustration, A is charged with double murder for the killing of X
and Y, and the judgment of the trial court is to convict A only for the death
of X, nothing having been said of the killing of Y, and the indemnities awarded
are only for the heirs of X, the judgment is if not express at least implied,
one of acquittal insofar as the killing of Y is concerned. If the judgment is
appealed, then the appellate court may not convict A for the killing of Y,
although it may convict or acquit A for the killing of X.
As
between the two sets of cases illustrated above, it is the last one to which
the instant case is similar in all material aspects. The same rule as intimated
to be applicable thereto should therefore, apply to the case at bar. This means
that the Court of Appeals could not legally and validly convict petitioner for
the first charge of estafa (abuse
of confidence) after she had been already acquitted thereof by the trial court.
What
should also be given proper significance is the fact that petitioner's
conviction for the charge of estafa for
having issued bouncing checks in payment of the obligation to complainant, as
to the price of the jewelries, is so erroneous on its face, in the light of the
established jurisprudence on the matter that petitioner is compelled to appeal
the judgment of conviction. In a manner of speaking, the accused is forced to
appeal not as a voluntary act, as to constitute waiver of the right against
double jeopardy. Accordingly, as already intimated, it would not be accurate to
say that the appeal threw the whole case open for review, including the fact
that petitioner had been acquitted of the first charge of estafa (abuse of confidence). It was only
with the second charge of estafa (issuing
bouncing checks) that the Court of Appeals acquired jurisdiction and may
affirm, modify or reverse the judgment with respect only to said offense, which
in the light of existing jurisprudence,[2] should be to
reverse the conviction, and the Court of Appeals did. The result would be for
the petitioner to stand acquitted of both charges by the trial court of estafa through misappropriation or
conversion, and by the Court of Appeals, of estafa through
issuance of bouncing checks in payment of a pre-existing objection.
Accordingly,
I vote to grant the petition and to set aside the decision of the Court of
Appeals in so far as it convicts the petitioner of the first charge of estafa committed by abuse of confidence.
[*] For simplicity and
convenience, this dissent focused on the case of petitioner Lolita Bañares
although, by reason of similarity on the essential facts of the two (2) cases,
whatever is said with respect to the case of petitioner Bañares may likewise be
applicable to the case of petitioner Ko Bu Lin.
[1] Lontoc v. People, 74 Phil 513.
[2]People v. Sabio, Jr., 86 SCRA 568 and cases cited
therein.
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