REPUBLIC OF THE PHILIPPINES PEOPLE OF ... - Sandiganbayansb.judiciary.gov.ph/RESOLUTIONS/2017/A_Crim_SB-16... · REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN QUEZON CITY PEOPLE OF

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

PEOPLE OFPHILIPPINES,

EFRAIM C. GENUINO, et. aLAccused.

1[---------------------------------------1[PEOPLE OFPHILIPPINES,

EFRAIM C. GENUINO,Accused.

Criminal Cases Nos. SB-16-CRM-0326 to 0327For: Violation of Section 3(e),Republic Act (R. A.) No. 3019,as amended

Criminal Case No. SB-16-CRM-0328For: Violation of Section 3(h),Republic Act (R. A.) No. 3019,as amended

CABOTAJE-TANG, P.J.,ChairpersonFERNANDEZ, J. andTRESPESES,l J.

For resolutionreconsideration which

are theseek to

followingreconsider

motions forthe Co/"'7

ResolutionCriminal Cases Nos. SB-l6-CRM-0326 to 0328People vs. Genuino, et. ai.

Resolution promulgated onaccused-movants' motionprobable cause:

September 9, 20162 denying thefor judicial determination of

1. Motion for Reconsideration dated September 27,2016 filed by accused Efraim C. Genuino;3

2. Motion for Reconsideration dated September 29,2016 filed by accused Edward F. King;4and

3. Motion for Reconsideration dated September 29,2016 filed by accused Ester P. Hernandez.s

Accused Genuino maintains that the Court's finding thathe signed the Philippine Amusement and GamingCorporation's (PAGCOR's)checks for disbursement of funds tothe Philippine Amateur SwimmingAssociation (PASA)becausehe is a mandatory signatory to all bank accounts maintainedby the PAGCORdoes not amount to a prima facie evidencesufficient to support a finding of probable cause for theissuance of a warrant of arrest against him. He argues thatthere is no proof that he signed the said PAGCORchecks orvouchers payable to the PASA.6He likewise argues that beingthe Chairperson of the PAGCOR'sBoard does not ipso factorender him criminally liable for the PAGCOR'sdisbursement offunds allegedly because even the other members of the Boardwere absolved from liabilityJ His non-participation and non-involvement in the deliberations and approval of the saiddisbursement allegedly bolster the absence of the element ofmanifest partiality, evident bad faith and even gross andinexcusable negligence. He claims that the Philippine SportsCommission (PSC) Chairperson himself, accused WilliamRamirez, instructed the PAGCOR to deduct the legitimateexpenses of the PASAfrom the PAGCOR'smonthly remittance

2 pp. 525-539, Record, Vol. IV3 pp. 591-601, Recorp, Vol. IV4 pp. 603-612, Record, Vol. IV5 pp. 614-622, Record, Vol. IV6 at pp. 2-3; pp. 592-593; 592-593, Record, Vol. IV7 at p. 3; p. 593, Record, Vol. IV

ResolutionCriminal Cases Nos. SB-16-CRM-0326 to 0328People vs. Genuino, et. al.

to the PSC. Said instruction was not questioned by the PSCBoard of Commissioners until the same was revoked onFebruary 11, 2009. This circumstance allegedly also negatesthe existence ofmanifest partiality, evident bad faith and grossinexcusable negligence in the disbursements made by thePAGCOR.8 He further argues that he did not sign the checksfor payment to Navarra and Synercraft, owned by Navarra, forthe maintenance of timing and computer systems of TAC,because the PAGCOR'schecks were payable to the PASAandthat the payments to Navarra or Synercraft were made by thePASAand not by the PAGCOR.9

Accused Genuino also argues that there is no probablecause to issue a warrant of arrest against him for violation ofSection 3(h) of R. A. No. 3019, as amended, purportedlybecause of the absence of the element of having "a direct orindirect financial or pecuniary interest in any business,contract or transaction." He insists that his family'sshareholdings in Trace College did not have pecuniary valueunlike in the Caballero vs. Sandiganbayan10 which was citedby the Court. Moreover, he inhibited himself from thePAGCOR'sBoard meetings on matters pertaining to the PASAwhich negated the element of actual intervention required forconviction in violation of Section 3(h) of R.A.No. 3019.11

On the other hand, accused King argues that there isnothing in the record to substantiate the allegation that heauthorized the direct release of the amounts of P9,000,000.00and P37,000,000.00 of the PAGCORfunds to the PASAandperformed an indispensable act to cause the direct release ofthe said funds. He insists that his signature appears only onthe 2009 Request for Payment (RFP)which is not subject ofthese cases.12

In her motion for reconsideration, accused Ester P.Hernandez insists that the record shows that there are thr~

8 at pp. 4-5; pp. 594-595, Record, Vol. IV k/9 at p. 5; p. 595, Record, Vol. IV10 534 SeRA 30 (2007) -11 at pp. 6-8; pp. 596-598, Record, Vol. IVU at pp. 7-8; pp. 609-610, Recoed, Vol. IV I.

ResolutionCriminal Cases Nos. SB-l6-CRM-0326 to 0328People vs. Genuino, et. al.

(3) Accounts Payable Vouchers (APVs); that she only signedtwo (2) of these APVs; that one of the APVs she signed pertainsto a transaction not subject of these cases. Thus, she contendsthat the said uncontroverted facts are insufficient tosubstantiate the charge that she facilitated all of thePAGCOR's disbursement to the PASA.13 She also invokesMacapagal-Arroyo vs. People14 and Arias vs.Sandiganbayan15 to support her claim that her mere act of'signing one of the APVs does not imply conspiracy. She alsoclaims that she relied on the Board's approval when shesigned the said APV.16

In its Consolidated Comment/Opposition datedNovember 21, 2016, the prosecution claims that thearguments in the subject motions are rehash of the assertionscontained in the accused-movants' respective counter-affidavits and motions for judicial determination of probablecause. It also argues that the accused-movants' insistence ontheir arguments "compels the Honorable Court into making adetermination whether there is probable cause to charge themwith the present cases at the pain of forcing it to review thefindings of the 'Ombudsman." 17

The Court finds the motions for reconsideration devoid ofmerit.

An examination of the subject motions forreconsideration shows that accused-movants did not raise anynew argument that would warrant a reversal of the Court'sResolution pr<?mulgated on September 9, 2016. They presentthe same arguments and cite the same rulings to support theircontention that there is no probable cause to charge themwith violation of Section 3 (e) and (h) of R. A. No. 3019.

To be sure, the Court had squarely passed upon theaforesaid arguments and the inapplicability of the cited rulingsin its questioned Resolution, ton _13 at p. 3; P 616, Record, Vol. IV ~14 G.R. Nos. 220598 and 220593, July 19, 2016 /"Of! r ~

15180 SeRA 309 (1989) r/16 at pp. 4-6; pp. 617-619, Record, Vol. IV17 pp. 717-722, Record, Vol. IV

ResolutionCriminal Cases Nos. SB-16-CRM-0326 to 0328People vs. Genuino, et. ai.

First. In Caballero vs. Sandiganbayan,18 theSupreme Court held that a husband has a directinterest in a business registered in the name of his wifebecause of the presumption that their propertyrelationship is under the regime of conjugal partnershipof gains:

The second element requires the publicofficer to have a direct or indirect financial orpecuniary interest in any business, contract ortransaction. The informations stated that GP'sFood Catering Services and Genty GeneralMerchandise were registered in the name ofMayor Caballero's wife, Theresa. The elementthat the mayor must have a direct pecuniaryinterest in the said businesses was sufficientlyalleged in the informations because, even ifthese entities were registered in his wife's nameand not in his own name, still Mayor Caballerowould have a direct interest thereon becausethey remained married to each other aFld assuch their property relations can be presumed tobe under the regime of conjugal partnership ofgains, in the absence of evidence to the contrary.Article 116 of the Family Code provides that allproperty of the marriage is presumed to belongto the conjugal partnership unless it be provedthat it pertains exclusively to the husband or tothe wife. Too, Article 106 of the same Codedeclares that all the properties of the conjugalpartnership of gains are owned in common bythe husband and wife. Thus, Mayor Caballerohad a direct interest in GP's Food CateringServices and Genty General Merchandise.

Applying the above ruling, accused-movantGenuino cannot successfully claim that he has nopecuniary interest in the Trace College or TAC becausehe was Trace College's president only from 1986 until2002 and it was his wife who held the said position in2003-2007, 2010-2011 and Erwin Genuino in the years2008-20/7~_

~534SCRA30120071 dI I ·


Second. It is simply impossible that accusedGenuino had no prior knowledge that the PASA wasgoing to use TAC. In fact, this could be the only reasonwhy he chose to inhibit himself in the deliberations ofmatters pertaining to the PASA during the Boardmeetings. Moreover, there is no showing that hedisclosed to the Board that he has a substantial interestin TAC. At any rate, accused Genuino subsequentlyauthorized the disbursements of the PAGCOR funds infavor of the PASA. Notably, this issue had beenconsidered by the Office of the Ombudsman in itsResolution dated September 22,2014:

The disbursement in favor of PASA, and ultimately toTAC become more suspect in view of respondent Genuinoand his family's effective ownership of TAC. Apparently,respondent Genuino's non-participation during thedeliberation for the direct financial assistance to PASA wasall for show as he subsequently authorized thedisbursements. Receipt of benefits by respondent Genuinofrom PASA's rental payment to TAC is presumed owing torespondent Genuino's co-ownership of the shares held by hiswife in TAC. Without any doubt, the grant of direct financialassistance authorized by respondent Genuino in an entitywhich he himself effectively owns and controls smacks ofself-dealing. And this type of self-dealing is proscribed underSec. 3(h) of Rep. Act No. 3019, as amended (Anti-Graft andCorrupt'Practices Act), in relation to Sec 7(a) of Rep. Act No.6713 (Code of Conduct and Ethical Standards for PublicOfficials and Employees). There is, thus, probable cause toindict respondent Genuino for his self-dealing actuation. 19

Third. The Memorandum dated September15, 2008 signed by accused-movant King shows thatthe alleged financial assistance in the amount ofP690,000.00 for the PASA in the 3rd Best PhilippineOlympic Festival Qualifying Swimming Championshipswas sourced from the CCSD Budget for the year 2008.The corresponding APV signed by accused-movantHernandez for the said alleged financial assistanceshows that it was sourced from the CCSD and not fromthe PSC's shares. . Indeed, while some of ~

19 P. 17, Joint Resolution dated September 22,2014" _, / _,/

di


disbursements were directly released to the PASApursuant to the accused Ramirez's letter dated August1, 2007, the others were disbursed as alleged financialassistance to the PASA. However, as correctly pointedout by the Office of the Ombudsman in its Resolution,the PAGCORhad to "adhere to the rules and regulationsgoverning financial assistance by a national governmentagency to a non-government organization/people'sorganization, including the prerequisite supportingdocumentary requirements before public funds may bedisbursed: "20

Of course, PAGCOR may by itself grantfinancial assistance to any non-governmentorganization or people's organization. Suchgrant would not come from the NSDF. Thisappears to be the reason why PAGCORsubsequently reclassified the 5% obligatoryremittance to financial assistance (sourced fromthe( OPPEX/CCSD funds). In which case,PAGCORhad to strictly adhere to the rules andregulations governing financial assistance by anational government agency to a non-government organization/people's organization,including the prerequisite supportingdocumentary requirements before public fundsmay be disbursed. But as to the compulsory 5%allotment for the NSDF, the same is required bylaw to be disbursed and transmitted by PAGCORto PSC.

Fourth. The non-inclusion of the other membersof the PAGCORBoard in these charges has already beensufficiently discussed by the Office of the Ombudsmanin its Resolution dated September 22,2014:21

On the other hand, respondents Lo, Gozo

" atP15,ReSO'"~O:~'te:::~e:be~:, 2:::~~:~VO'O: the Boar~21 at p. 20, Record, Vol. I


Directors, the policy-making body of PAGCOR,may not be faulted for relying in good faith onthe advice of PAGCOR's executive officers,particularly its legal counsel Atty. Carlos R.Bautista, Jr., on the claimed legality of the directremittance of PAGCOR funds or financialassistance to PASA. Their non-objection andsubsequent concurrence to the policy of directremittance was premised on the representationand assurance by the PAGCORexecutive officersthat such was allowed under the law. Suchrepresentation on the part of the PAGCORexecutive officers is indicative of the latter'sevident bad faith. But the same, standing alone,is not sufficient evidence to prove conspiracybetween the executive/management officers andthe members of the Board of Directors.Conspiracy, after all, has to be proven by directevidence or by proof of the overt acts of therespondents, before, during and after thecommission of the crime charged indicative ofcommon design (Antonio vs. Desierto, et. A1.,G.R. No. 144492, 18 December 2008)

At any rate, the prosecution of crimes appertainsto the executive department of government whoseprincipal power and responsibility is to see that ourlaws are faithfully executed. A necessary component ofthis power to execute our laws is the right to prosecutetheir violators. The right to prosecute vests theprosecutor with a wide range of discretion - thediscretion of whether, what and whom to charge, theexercise of which depends on a smorgasboard of factorswhich are best appreciated by prosecutors.22

Fifth.on Arias andmisplaced.

Accused-movant Hernandez's relianceMacapagal-Arroyo and cases cases is

The Arias doctrine held that all heads of officeshave to rely to a reasonable extent on their subordinatesand on the good faith of those who prepare bi~

" Webb vs. De Leon, 2<7SCRA 652 (1995) 'ii.


purchase supplies, or enter into negotiations. There hasto be some added reason why the head of office shouldexamine each of the documents he is supposed tosign.23

It must be stressed, however, that the Ariasdoctrine is not an absolute rule. In Rivera vs. People,24the Supreme Court made the following declaration:

The Arias doctrine is not an absolute rule.It is not a magic cloak that can be used as acover by a public officer to conceal himself in theshadows of his subordinates and necessarilyescape liability. Thus, this ruling cannot beapplied to exculpate the petitioners in view ofthe peculiar circumstances in this case whichshould have prompted them, as heads of offices,to exercise a higher degree of circumspectionand, necessarily, go beyond what theirsubordinates had prepared.

In "this case, R. A. No. 6847 clearly provides thatfive percent (5%) of the gross income of the PAGCORshall be automatically remitted directly to the PSC toform part of the NSDF. As the Office of theOmbudsman had declared in its Joint Resolution, thesaid provision does not empower the PSC to direct thePAGCOR to release its five (5) % allotment in favor of anational sports association (NSA) like the PASA or anidentified training facility being utilized by the said NSAlike TAC because the NSDF, being public funds, shouldbe accounted for and liquidated by PSC as the propergovernment agency having custody thereof.25 Thus,accused-movant Hernandez, as then Vice President,Accounting Department, of PAGCOR, should have beenalerted on the PSC's letter authorizing the PAGCOR todirectly 'release its PAGCOR's share to the PASA; hence,she cannot tenably rely on the Arias dad,/?

23 People vs. Sandiganbayan, G.R. No. 197953, August 5, 201524 G.R. Nos. 156577, 156587 and 156749, December 3, 201425 at p. 14


Likewise, the ruling in the Macapagal-Arroyocase is not applicable to the present case. To be sure,the said case involves a demurrer to evidence.Obviously, the prosecution had already completed thepresentation of evidence and had rested its case. Thus,the issue therein was whether there was sufficient orcompetent evidence to support a verdict of guilt. Inthese cases, the only issue to be determined is whetherthere is a probable cause to issue warrants of arrestagainst accused-movants.

To be sure, accused's motion for determination ofprobable cause is based purely on evidentiary matters.Moreover, they invoke the same arguments in theircounter-affidavits filed before the Office of theOmbudsman i.e., good faith, absence of the elements ofthe crimes charged, denial of the signature and lack ofevidence to establish conspiracy.

It has long been settled that the presence orabsence of the elements of the crime is evidentiary innature and is a matter of defense that may be bestpassed upon after a full-blown trial on the merits.26

Whether an act was done causing undue injury tothe government and whether the same was done withmanifest partiality or evident bad faith can only bemade out by proper and sufficient testimony.Necessarily, a conclusion can be arrived at when thecase has already proceeded on sufficient proof.27 On theother hand, the absence or presence of conspiracy isagain factual in nature and involves evidentiarymatters. The same is better left ventilated before thetrial court during trial, where the parties can adduceevidence to prove or disprove its presence.28

Further, accused Hernandez's claim that her act ofsigning the APVs cannot be construed as an act of

" People ••• Yeevec, G.R. No. 183551, No'embe< 12, 2004 '77" pi'apH vs. 5andlganbayan, et. of., 221 5CRA 349 (1993) f'r!-" People vs. Dumlao, et. 01., 5805CRA 409 (2009) )0 ~. q.


consp1nng with the other accused is a matter ofdefense. The truth of this can be best passed upon aftera full-blown tria1.29 The existence of good faith or lack ofit is also' evidentiary in nature.30

Indeed, the validity and merits of a party's defenseand accusation, as well as admissibility of testimoniesand evidence, are better ventilated during trial properthan at the preliminary investigation level. A finding ofprobable cause does not ensure a conviction or aconclusive finding of guilt beyond reasonable doubt. Theallegations adduced by the prosecution will be put totest in a full-blown trial in which evidence shall beanalyzed, weighed, given credence or disproved.31

Finally, the filing of a motion for judicial determination ofprobable cause is a mere superfluity. It is jurisprudentiallysettled that the task of the presiding judge when theInformation is filed with the court is first and foremost todetermine the existence or non -existence of probable cause forthe arrest of the accused.32 Since the judge is already duty-bound to determine the existence or non-existence of probablecause for the arrest of the accused immediately upon the filingof the information, the filing of a motion for judicialdeterminat,ion of probable cause becomes a mere superfluity, ifnot a deliberate attempt to cut short the process by asking thejudge to weigh in on the evidence without a full-blown tria1.33

WHEREFORE, the Court DENIES the following motionsfor lack of merit:

1. Motion for Reconsideration dated September 27,2016 filed by accused Efraim C. Genui~ .;.

29Nava vs. Commission on Audit, 419 SCRA 544 (2001), cited in Redu la vs. ndiganbayan, 517 SCRA110 (2007)30Enrile vs. People, G.R. No. 213455, August 11, 2015, citing Deloso vs. Desierto,31Ricaforte vs. Jurado, 532 SCRA317 (2007)32leviste vs. Alameda, 626 SeRA 574 (2010)33De los Santos-Dio vs. Court of Appeals, 699 SCRA614 (2013)


2. Motion for Reconsideration dated September 29,2016 filed by accused Edward F. King; and

3. Motion for Reconsideration dated September 29,2016 filed by accused Ester P. Hernandez.

SO ORDERED.Quezon City, Metro Manila

JANE T. F NANDEZAssociate Justice

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REPUBLIC OF THE PHILIPPINES PEOPLE OF ... - Sandiganbayansb.judiciary.gov.ph/RESOLUTIONS/2017/A_Crim_SB-16... · REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN QUEZON CITY PEOPLE OF