republic of the philippines -...

REPUBLIC OF THE PHILIPPINESSANDIGANBA YAN

Quezon City

Seventh Division

PEOPLE OF THE PHILIPPINES,Plaintiff,

Criminal Case No. SB-17-CRM-

2199

-versus-

CONCEPCION ONG LIM,

DIONISIO DAJALOS BALITE,

JOSE ECHAVIA VELOSO,FELIX REALISTA UY, AMALLA

REYES TIROL, ESTERCORAZON JAJVnSOLA

GALBREATH, GODOFREDA

OLAVIDES TIROL, MA. EECAMACHO-LEJOS, BRIGIDOZAPANTA IMBOY, FRANCESBOBBITH DEL ROSARIO

CAJES-AUZA, HANDELTUMULAK LAGUNAY, EDWIN

TUTOR VALLEJOS, ABRAHAMDORIA CLARIN, GRETA AYA-AY MENDE, LAURASARAMOSING-BOLOYOS, and

FELIX MASCARINAS

MEJORADA.

Accused.

Present:

Gomez-Estoesta, J., ChairpersonTrespeses, J. andMiranda, J.*

Promulgated: .uBs, iUOtf

RESOLUTION

GOMEZ-ESTOESTA, J.;

The present case stemmed from a Complaint' dated October 14, 2014filed by the Field Investigation Office ("FIG") of the Office oJ

' Per Administrative Order No. 008-2018 dated January 8,2018 9 ̂Filed by Grant Investigation and Prosecution Officer I Marie Beth S. Almero (Records, Vol. 1, pp. 58-102)

People V. Concepcion Ong Lim, et al. 21P a g eCriminal Case No. SB-17-CRM-2199

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Ombudsman ("Ombudsman") charging the accused, in their respectivefunctions as members of the Sangguniang Panlalawigan or members of theBids and Awards Committee of the Province of Bohol, of having given aprivate entity known as Civil Merchandising, Inc. unwarranted benefits,advantage, or preference by authorizing the opening of a letter of credit forthe payment of one (1) unit backhoe with breaker, which resulted in undueinjury to the government in the amount of Seventy-Four Thousand FourHundred Ninety-Eight Pesos and Fifteen Centavos (P 74,498.15). TheInformation reads, thus:

That for the period from 4 April 2006 to 12 July 2006, or sometimeprior or subsequent thereto, in Tagbilaran City, Province of Bohol,Philippines, and within the jurisdiction of this Honorable Cotirt, accusedCONCEPCION ONG LIM, DIONISIO DAJALOS HALITE, JOSEECHAVIA VELOSO, FELIX REALISTA UY, AMALIA REYES TIROL,ESTER CORAZON JAMISOLA GALBREATH, GODOFREDAOLAVIDES TIROL, MA. FE CAMACHO-LEJOS, BRIGIDO ZAPANTAIMBOY, and FRANCES BOBBITH DEL ROSARIO CAJES-AUZA, allhigh-ranking public officers being members of the SangguniangPanlalawigan, HANDEL TUMULAK LAGUNAY, Provincial LegalOfficer/Bids and Awards Committee (BAC) Chairman, EDWIN TUTORVALLEJOS, Provincial General Services OfFicer/BAC Vice-Chairman,GRETA AYA-AY MENDE, Assistant Provincial Engineer/BAC Member,LAURA SARAMOSING-BOLOYOS, Supply Officer IV/BAC Member,FELIX MASCARINAS MEJORADA, Administrative Officer/BACMember, and ABRAHAM DORIA CLARJN, Head, ProvincialMotorpool/BAC Member, all of the Provincial Government of Bohol, whilein the performance of their administrative and/or official functions andcommitting the crime in relation to office, acting with evident bad faith,manifest partiality and/or gross inexcusable negligence, conspiring andconfederating with one another, did then and there willfully, unlawfully andcriminally give Civic Merchandising, Inc. (CMI) unwarranted benefits,advantage or preference and cause undue injury to the government in theamount of PhP74,498.15 by authorizing or allowing payment to CMI or itsforeign supplier through a letter of credit relative to the procurement of oneunit backhoe with breaker, and to debit/deduct all charges incidental to theopening and negotiation of the said letter of credit against the account of theProvince of Bohol with the Philippine National Bank, which was actuallydebited, in the amount of PhP74,498.15, despite the prohibition underSection 42.5 of the Implementing Rules and Regulations-Part A of RepublicAct No. 9184 (Government Procurement Reform Act), and MemorandumOrder No. 119 dated 18 September 2003, issued by the Office of thePresident, to the damage and prejudice of the government in the aforesaidamount.

CONTRARY TO LAW.

Gauged from the records of the case, the material factual antecedentsfollow:

The Bids and Awards Committee of the Provincial Government of

Bohol published an Invitation to Apply for Eligibility and To Bid for its


RESOLUTION

intended purchase of one (1) unit hydraulic excavator (backhoe) with breaker?After the submission of bids by Monark Equipment Corporation and CivilMerchandising, Inc. ("CMI")? the bid of CMI was declared as the singlecalculated/rated and responsive bid,"* following which a Notice of Award wasissued in its favor.^

On July 10, 2006, the Sangguniang Panlalawigan of Bohol issuedResolution No. 2006-387 ("SP Resolution No. 2006-387") authorizing theProvincial Governor to open a letter of credit with Philippine National Bank("PNB") for the intended purchase, and allowing PNB to deduct the openingand negotiation charges relative to the letter of credit from the funds of theProvince of Bohol, in this wise:^

XXX

WHEREAS, the purchase through importation of the above-mentioned heavy equipment is still a part of the previous plan to buy a fleetof brand new heavy equipment for the Road Development Program of theProvince authorized by the Sangguniang Panlalawigan as embodied in SPResolution No. 2003-675;

WHEREFORE, be it resolved, as it is hereby resolved by theSangguniang Panlalawigan of Bohol in session duly assembled -

To authorize the Honorable Provincial Governor, Atty. Erico B.Aumentado to open a Letter of Credit with the Philippine NationalBank, Cebu Branch, in the amount of Nine Million Four Hundred TenThousand Five Hundred Sixty Pesos (Php9,410,560.00), PhilippineCurrency or its equivalent amount of the currency of the country of origin,for the purchase through importation of one (1) unit brand new hydraulicexcavator (backhoe), with breaker for the Road Development Program ofthe Province, and, to sign all documents appertaining thereto, and tofurther authorize the Philippine National Bank to debit all chargesincidental to the opening and negotiation of the Letter of Credit againstthe standing account of the province with the hank; (Emphasis supplied)

XXX

Letter of Credit L/C No. 0365-806-00004 was subsequently issued inthe total amount of P9,723,998.15,^ which was confirmed to have beendebited from the account of the Provincial Government of Bohol under

account number 485-861333-2 on July 12, 2006. Significantly, the chargespertaining to the negotiation and opening of the letter of credit amounted toP39,498.15 (letter of credit opening charges) and P35,000.00 (negotiationcharges) or a total of P74,498.15.®

On September 11, 2006, the backhoe with breaker was delivered ingood order/condition as per Delivery Receipt No. 8751

^Records, Vol. 1, p. 205; "Breaker" is interchangeably spelled as "braker" y ✓ '^ Records, Yol- h P- 206 f Y"Mat 209 /

at210

« Mat 211-213

'M at 218-219

® Mat 219

'M. at 214

People V. Concepcion Ong Lim, et al.Criminal Case No. SB-17-CRM-2199

RESOLUTION

41P a g e

After the requisite preliminary investigation from the filing of the FIOComplaint against the accused on November 6, 2014, the Ombudsman foundprobable cause to charge them of violation of Section 3 (e) of Republic ActNo, 3019 3019''') per Resolution dated November 24,2015. Ultimately,the Information was filed before this Court on December 1, 2017, indictingthe accused of said crime.

Before the accused could be arraigned, however, the following motionswere filed:

Pleading Filed by Accused

Motion to Dismiss

(on Ground of Inordinate Delay)

Concepcion Ong Lim, Jose E. Veloso, andFelix R. Uy

Motion to Dismiss/Quash Information(For Lack of Cause of Action, No

Probable Cause and Violation of theConstitutional Right to Speedy

Disposition of Cases)

Frances Bobbith Del Rosario Cajes-Auza

Motion to Quash Information (Ground:Facts Charged Do Not Constitute an

Offense)

Handel Tumulak Lagunay, Edwin TutorVallejos, Abraham Doria Clarin, GretaAya-ay Mende, Laura Saramosing-

Boloyos, and Felix Mascarinas Meiorada

Motion to Dismiss

(on Ground of Inordinate Delay)Amalia Reyes Tirol, Ester Corazon

Jamisola Galbreath, Godofreda OlavidesTirol, Brigido Zapanta Imboy, and Ma. Fe

Cairiacho-Leios

Omnibus Motion (I) To QuashInformation dated 11 September 2017 and

(2) To Dismiss for Violation oftheAccused's Constitutional Right to Speedy

Disposition of Cases

Dionisio Dajalos Balite

The Motions to Dismiss

The doctrine of inordinate delay was highlighted by most of theaccused, save for accused Lagunay, et al., in their respective motions todismiss where they invoked their constitutional right to speedy disposition ofcases which was purportedly trampled upon by the prosecution when the latterallowed the lapse of approximately six (6) or seven (7) years commencingfrom the fact-finding investigation until the filing of the present Informationbefore this Court. In arguing for the dismissal of the charge, the accused citedthe oft-repeated jurisprudence in support of the same; i.e., Coscolluela v.SandiganbayanJ ̂ People v. SandiganbayanJ^ Torres v. SandiganbayanJ^Tatad v. SandigaribayanJ"^ Roque v. Ombudsman Corpuz v.

specifically, the accused cited the following periods in support of their respective motions: more or lessseven (7) years by accused Auza; seven (7) years by accused Lim, Veloso, and Uy; six (6) years by accusedBalite; and not less than six (6) years by accused Amalia Reyes Tirol, Galbreath, Godofreda Olavides Tirol,Imboy, and Lejos" G.R. Nos. 191411 & 191871, July 15,2013'2 G.R. Nos. 188165 & 189063, December 11,2013 . ." G.R. Nos. 2215^-69, October 5,2016 f ̂

G.R. Nos. 72335-39, March 21, 1988 fG.R. No. 129978, May 12, 1999

People V. Concepcion Ong Lim, et at. 51 P a g eCriminal Case No. SB-17-CRM-2199

RESOLUTION

SandiganbayanJ^ Duterte v. SandiganbayanJ^ Angchangco, Jr. v.Ombudsman Lopez, Jr. v. Ombudsman People v. Anonas,^^ Cervantes v.Sandiganbayan,^^ andAbardov. Sandiganbayan.^^

The Motions to Quash Information

In addition to the issue on inordinate delay, the following accused(except accused Lagunay, et al.) ventured on the following grounds in theirseparate motions to quash:

A. Accused Frances 'Bobbith Del Rosario Cajes-Auza ("accused Auza")argued that there is neither cause of action nor the existence of probable causeagainst her. At the time of the incident, she was then a twenty-year-old collegestudent and an ex-ofFicio member of the Sangguniang Panlalawigan being theSangguniang Kabataan President for the Province of Bohol. The Informationcentered on the fact that all of the accused enacted SP Resolution No. 2006-

387. Accused Auza, however, did not approve said Resolution as evidencedby the voting sheet showing that she did not affix her signature thereto.Further, accused Auza underscored that legislative bodies, such as theSangguniang Panlalawigan, are not part of the procurement process. Saidbody only gave authority to the Bids and Awards Committee and Head of theProcuring Entity to enter into negotiations or sign documents and contracts.What was material in the present case was not the fact of approving SPResolution No. 2006-387, but the actual payment of the charges incidental tothe opening of the letter of credit.

B. Accused Dionisio Dajalos Balite ("accused Balite") claimed that it waslegally impossible to charge an offense against him as in fact, the Informationdid not state the precise degree of his participation which would haveconstituted any of the elements of the crime charged. In fact, all the accusedmembers of the Sangguniang Panlalawigan were lumped together in theInformation without stating with particularity their overt acts. In truth,.accused Balite did not even vote to approve SP Resolution No. 2006-387. Hewas barred from participating in the voting thereon because he was thepresiding officer during the session of the Sangguniang Panlalawigan ofBohol on July 10, 2006 when said Resolution was deliberated upon. That hedid not vote to approve SP Resolution No. 2006-387 is bolstered by Rule 1.8of the Internal Rules of Procedure of the Sangguniang Panlalawigan of Bohol-which states, that the Presiding Officer shall vote only to break a tie. His.signature was thus conspicuously absent from the columns "Affirmative","Negative", or "Abstained." His signature only appeared in the attestationportion of SP Resolution No. 2006-387 to affirm the fact that the same was

16 434 pj^jj 399^ 917 (2004) as cited by Coscollueia v. Sandiganbayan, G.R. Nos. 191411 & 191871, July

•15,2013" G.R. No. 130191. April 27, 1998

G.R. No. 122728, February 13,1997" G.R. No. 140529, September 6, 2001 ^ "72® G.R. No. 156847, January 31, 2007 /21 G.R. No. 108595, May 18, 199922 G.R. Nos. mSlX'll, March 28,2001

People V. Concepcion Ong Lim, et al. 61 P a g eCriminal Case No. SB-17-CRM-2199

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approved by the majority of the Sangguniang Panlalawigan of Bohol.Moreover, the Implementing Rules and Regulations of the GovernmentProcurement Reform Act {Republic Act No. 9184) has been amended byMemorandum Order No. 2013, series of2006 such that the issuance of a letterof credit in favor of a local or foreign supplier is no longer a violation of saidlaw. Additionally, accused Balite claimed that he was being persecuted in thiscase in spite of Ihe fact that he has rendered 55 years of unblemished, faithfulpublic service, rendering this charge as one for malicious prosecution.

C. Accused Handel Tumulak Lagunay, Edwin Tutor Vallejos, Abraham DoriaClarin, Greta Aya-ay Mende, Laura Saramosing Boloyos, and FelixMascarinas Mejorada contended that the facts as charged in the Informationdo not constitute an offense. Their indictment sprung from the OmbudsmanResolution dated November 24, 2015 accusing them of violating an oldprovision, namely Section 42.5 of the Implementing Rules and Regulations ofRepublic Act No. 9184 which bars the issuance of letters of credit by procuringentities in favor of suppliers, when the same has already been amended byMemorandum Order No. 213 dated May 8,2006.^"^ In effect, the new law nowallows the issuance of letters of credit as a mode of payment in governmentprocurements.^^ This amendment should be given retroactive effect as it isfavorable to the accused.

It was thus jointly prayed that the Information be quashed.

The Consolidated Comment/Opposition of the Prosecution

The prosecution refuted the averments made by the accused on thefollowing grounds:

First, there is a cause of action against accused Auza. The allegationsof accused Auza revealed that what she was actively seeking was a judicialdetermination of probable cause, which is a prohibited motion under theRevised Guidelines for Continuous Trial of Criminal Cases. Although saidaccused also argued that her signature was not found in SP Resolution No.

^ The cited provision provides:

SECTION 42. Contract Implementation and Termination. —

XXX

/'r

42.5. No procuring entity shall be allowed to issue a letter of credit in favor of a Philippineentity or to any of the latter's foreign manufacturers or suppliers, with respect to any procurement.

Published on May 12,2006 in the Manila Times.

" SECTION 42. Contract Implementation and Termination. —

XXX

42.5. Procuring entities may issue a letter of credit in favor of a local or foreign suppliers;Provided, that, no payment on the letter of credit shall be made until delivery and acceptance of thegoods as certified to by the procuring entity in accordance with the delivery schedule provided forin the contract; Provided further, that, the cost for the opening of letter of credit shall be for theaccount of the local or foreign supplier and to be so stated in the bidding documents.

People V. Concepcton Ong Lim, et al. 71P a g eCriminal Case No. SB-17-CRM-2199

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2006-387, a reading thereof showed that none of Sanggimiang Panlalawiganmembers present dissented nor inhibited during its passage. Accused Auza'sdefense, therefore, is purely evidentiary and would be properly threshed outduring trial on the merits.

Second, there is a clear violation of Republic Act No. 3019. TheSangguniang Panlalawigan fimctions differently from that of the Bids andAwards Committee ("BAG") and the Head of the Procuring Entity. The actionby the Sangguniang Panlalawigan in allowing undue payment of the openingof the letter of credit and its negotiation charges to PNB and CMI gaveunwarranted benefit and caused undue injury to the Province of Bohol.

Third, there is no inordinate delay in the case. The right to speedydisposition of cases is a flexible concept which required an examination of thefacts and circumstances peculiar to each case. The resolution of the case ofthe accused was not attended by vexatious, capricious, or oppressive delays.

Considering the total time taken in the preliminary investigation, aperiod of only two (2) years had lapsed from the filing of the Complaint onNovember 6, 2014 until the Information was submitted on September 11,2017. Meantime, the Ombudsman's Resolution finding of probable causeagainst the accused was approved in 2016, after which several of the accusedfiled their respective motions for reconsideration, hence further backtrackingthe filing of the Information.

For its part, the FIG had to conduct its own investigation of the factsindependent of that of the Commission on Audit ("COA"). Only then wouldthe FIO endorse a complaint to the Central Office of the Ombudsman forpreliminary investigation.

The jurisprudence cited by the accused could not be relied on as thesame involved different facts and circumstances from that which pervaded inthe present. Moreover, the accused did not assert their right to a speedydisposition during the preliminary investigation. Their silence thus amountedto a waiver of such right.

Fourth, the Information sufficiently alleged the elements of the crimecharged. Memorandum Order No. 213 introduced an amendment to Section42.5 of the Implementing Rules and Regulations of Republic Act No. 9184such that the issuance of a letter of credit is now allowed. This is subject tospecific conditions, to which the accused failed to adhere: (1) payment on theletter of credit is prohibited until after the delivery and acceptance of thegoods; and (2) the cost of the opening of the letter of credit shall not beallowed to be charged against the account of the procuring entity.

Furthermore, while accused Balite alleged that he was the PresidingOfficer during the passage of SP Resolution No. 2006-387, and as suchdisqualified from taking part in the voting thereon, this is an evidentiarymatter that would best be threshed out in a full-blown trial.

The prosecution thus prayed that the accused's motions be denied.

/

People V. Concepcion Ong Lim, et al. 81P a g eCriminal Case No. SB-17CRM-2199

RESOLUTION

Accused Balite i Reply

Accused Balite maintained that the Information did not state withparticularity his participation in the crime charged. He reiterated that as thepresiding officer, he did not participate in the voting of SP Resolution 2006-387 except only to break a tie. Additionally, accused Balite insisted that theprosecution violated his constitutional right to speedy disposition of cases.The time used by the Ombudsman in carrying out its fact-finding investigationshould be considered in the computation of the delay committed by it. Sincethe commencement of said investigation, it took a total of eight (8) years oruntil December 1, 2017 for the prosecution to file the Information before thisCourt. He thus prayed that the Information be quashed and that the case bedismissed.

Our Ruling

On Inordinate Delay

The right of speedy disposition of cases is enshrined in Section 16,Article 3 of the Constitution which provides that "[a] 11 persons shall have theright to a speedy disposition of their cases before all judicial, quasi-judicial,or administrative bodies."^^

This flmdamental right is violated when "the proceedings are attendedby vexatious, capricious, and oppressive delays; or when unjustifiedpostponements of the trial are asked for and secured; or when without causeor justifiable motive a long period of time is allowed to elapse without theparty having his case tried."^^

The balancing test is used in determining whether the right to speedydisposition of cases has been violated. This test evaluates cases on an ad hocbasis and weighs the conduct of both the prosecution and defendant in light ofthe following four factors: (1) the length of delay; (2) the reasons for the delay;(3) the assertion or failure to assert such right by the accused; and (4) theprejudice caused by the delay.^^ None of these elements, however, is either anecessary or sufficient condition; they are related and must be consideredtogether with other relevant circumstances.^^ These factors have no talismanicqualities as courts must still engage in a difficult and sensitive balancingprocess.^® ,

Phil. Const, art. 3, § 16People V. Sandiganbayan, G.R. Nos. 188165 & 189063, December 11,2013Remulla v. Sandiganbayan (Second Division), G.R. No. 218040, April 17,2017

2'Ibid

Ibid

People V. Concepclon Ong Lim, et al. 91P a g eCriminal Case No. SB-17-CRM-2I99

RESOLUTION

In their respective motions to dismiss, it is the stance of the accused thatthe Ombudsman contravened their constitutional right to speedy dispositionof cases by committing inordinate delay in the proceedings counted from thefact-finding investigation to the filing of the Complaint by the FIG which ledto the preliminary investigation, until the present Information was filed beforethis Court.

Applying the balancing test. We do not find the element of inordinatedelay as claimed by the accused (save for accused Lagunay, et al.).

The perceived inordinate delay has been prematurely tacked in to thefact-finding investigation which accused carped ought to have been computedfrom 2010 when the fact-finding investigation commenced as spurred by theCOA's issuance of the Audit Observation Memorandum dated January 7,2010. On this premise, accused principally relied on the cases of People v.Sandiganbayan,^^ Remulla v. Sandiganbayan,^ Torres v. Sandiganbayan?^

This stance, however, is unavailing. Jurisprudence holds that a meremathematical reckoning of the time involved is not sufficient to constituteinordinate delay. Moreover, the period taken up from the fact-findinginvestigation should not be factored in to determine the presence of inordinatedelay, considering the circumstances of this case.

A brief examination of the jurisprudence cited by the accused is inorder.

In People v. Sandiganbayan, then Secretary of Justice Hemando B.Perez was one of the respondents implicated in a controversy pertaining toalleged acts of bribery. Relative thereto. Secretary Perez was able toparticipate in a fact-finding investigation conducted by the FIO of theOmbudsman. During said investigation. Secretary Perez had requested theOmbudsman to "verify from the Coutt's Bank whether he (Secretary Perez)had ever held any account in that bank to which the sum of US$2 Million hadbeen remitted by Cong. Jimenez." Subsequently, Secretary Perez had beeninformed of the developments of his investigation, specifically that there wasa letter from Coutts Bank stating that "Hemando B. Perez" had no accountwith it. Secretary Perez, therefore, knew of the conduct of the fact-findinginvestigation being held against him.

Remulla v. Sandiganbayan stemmed from the filing by Remulla of acriminal complaint on August 12, 2005 against Maliksi before theOmbudsman for violation of Section 3 (e) of R,A. 3019, to which Maliksisubsequently filed his counter-affidavit on December 15, 2005. BecauseMaliksi was ordered to file said counter-affidavit, it thus seemed that thecriminal complaint of Remulla was not docketed for fact-findinginvestigation, but for preliminary investigation. In this case, it should be noted

//■3' G.R. Nos. 188165 & 189063, December 11,201332 G.R. No. 218040, April 17,201733 G.R. Nos. 221562-69, October 5,20163'* Republic v. Desierto, G.R. No. 131966, August 31,2005 which cited Deia Pena vs. Sandiganbayan^ G.R.No. 144542, June 29,2001

People V. Concepci'on Ong Lim, et al. 101P a g eCriminal Case No. SB-17-CRM-2199RESOLUTION

that Remulla's case had been consolidated with another case involving thepeso, which inevitably led to delays in the routing and the disposition of theconsolidated cases. However, it did not appear that any fact-findinginvestigation was administered in the case of Remulla; rather, it was only thepeso case, to which Remulla's case was consolidated, which underwent saidinvestigation. From its inception, however, Remulla did know of the existenceof the investigation, having been already required to file his counter-affidavit.

In Torres v. Sandiganbayan, the Highest Court ultimately held theprosecution accountable for the splitting of the investigations whichprejudiced the rights of Torres. The CO A Special Audit Report pertaining tothe alleged overpricing of medicines of the Philippine Navy had been in thepossession of the Ombudsman and had been the subject of ̂ts review andscrutiny for at least eight (8) years before another investigation was ordered,and at least sixteen (16) years lapsed before probable cause was found. Noparallelism could be derived from said case to the instant case.

As can be gleaned from the aforecited cases of People v.Sandiganbayan, Remulla, and Torres, what spurred the Supreme Court'spronouncement that the time taken in fact-finding investigations should betaken into account in determining if undue delay existed in the disposition ofa case were the presence of the following circumstances: (a) when the fact-finding investigation of the Ombudsman required the participation of anaccused; (b) when the participation of the accused was no longer necessarysuch that preliminary investigation may proceed; and (c) when there is anobvious fractionalization of investigations resulting in the filing of severalcases against the accused.

However, it is well to remember that each case or controversy rests onparticular facts and circumstances peculiar to each instance. In the presentcase, none of the aforecited circumstances which pervaded in People v.Sandiganbayan, Remulla, and Torres obtain as to the accused. The accusedwere not made an integral part of the fact-finding investigation conducted bythe FIO of the Office of the Ombudsman. As a matter of fact, accused AmaliaTirol, Ester Corazon Galbreath, Godofreda Tirol, Brigido Imboy, and Ma. FeCamacho-Lejos were quick to admit that the "secrecy of [the] investigation"made it hard for them to discern when it even started, as the "Office [did] notofficially inform the respondents/accused of the exact CPL date."^^ Neitherwas it claimed that accused suffered undue vexation during said investigation.

For this reason, this Court opines and so holds that the time taken bythe prosecution in conducting a fact-finding investigation should not becounted in determining the presence of inordinate delay. This conclusion isbolstered by the fact that the time used in the fact-finding investigation shouldnot be computed together with that taken by the Ombudsman in its ownpreliminary investigation. Therefore, the time taken in the fact-findinginvestigation should be excluded in factoring the presence of inordinate delayin the proceedings. Consequently, the inordinate delay, if such exists, should

Motion to Dismiss filed by accused Tirol, et al., p. 2

People V. Concepcion Ong Lim, et al.Criminal Case No. SB-17-CRM-2I99RESOLUTION

IIIP a g e

be counted from the start of the preliminary investigation done by theOmbudsman, which began with the filing of the Complaint by the FIG.

From the timeline provided by the prosecution, the following keymaterial dates in the preliminary investigation proceedings before theOmbudsman to be taken into consideration are:

Event Date

Filing of the Complaint November 6,2014

Issuance of Resolution findingprobable cause against the accused

November 24, 2015

Approval by OmbudsmanConchita Carpio Morales of

Resolution dated November 24,

2015

December 6,2016

Order denying the motions forreconsideration filed by the

accused

March 7, 2017

Filing of the present Information September 11,2017

There must be due consideration given to the time taken by theOmbudsman in orderly and fairly evaluating complaints lodged before it.There were multiple respondents involved in the present charge, the numberof which led to the increase in the number of pleadings filed. As a result, anincrease in pending incidents would naturally lengthen the proceedings. In thiscase, during the interim period since the filing of the Complaint on November6. 2014, the case evaluation presumably went through its standard procedureinvolving the filing of the accused's respective counter-affidavits and otherpleadings. It is noted that the length of the preliminary investigation wascompounded by the submission of separate motions for extension of time tofile counter-affidavit by accused Clarin, Mejorada, Vallejos, and Mende.Subsequently, the Ombudsman issued its Resolution dated November 24,2015 finding probable cause against the accused, which was thereafterapproved by Ombudsman Conchita Carpio-Morales on December 6, 2016.What then followed was the filing of the respective motions forreconsideration by accused Lagunay, Clarin Saramosing-Boloyos, Mejorada,Mende, Lim, Balite, Veloso, Uy, Cajes-Auza, Tirol, Olavides Tirol, andGalbreath, all of which the Ombudsman denied in its Order dated March 7,2017. The present Information was ultimately filed on September 1L 2017, orat which time approximately two (2) years and ten (10) months had lapsedsince the commencement of the preliminary investigation proceedings beforethe Ombudsman.

From the foregoing, the lapse of only two (2) years and ten (10) monthscannot be considered as delay, much less inordinate delay, which prejudicesthe constitutional rights of the accused. Said period even falls short of thethree-year delay which the Supreme Court adjudged to be violative of theaccused's constitutional right to speedy disposition in the watershed case


RESOLUTION

of Tatad v. Sandiganbayan.^^ Neither can the time utilized by theOmbudsman be characterized as vexatious, capricious, or oppressive, absentany circumstance proving that there was an obvious deviation from the regularprocedure in the prosecution of the accused.

' Although the accused aver that they have been antagonized and stressedby their prosecution, this Court does not deem the prejudice described by themas one caused by inordinate delay.

Prejudice should be assessed in light of the interests of the accused,such as: (a) to prevent oppressive pretrial incarceration; (b) to minimizeanxiety and concern of the accused; and (c) to limit the possibility that thedefense will be impaired.^^

In the case of Angchangco, Jr. v. Ombudsman, the accused therein wasfotind to have suffered prejudice.^^ In said case, the Ombudsman failed toresolve the criminal charges against Casiano Angchangco, Jr. for more thansix (6) years which took a toll on him having retired and having been deprivedof the fruits of his retirement after serving the government for over forty-two(42) years all because of the inaction of the respondent Ombudsman. TheHighest Court thus held that should it wait any longer, it may be too late forpetitioner to receive his retirement benefits, not to speak of clearing his name.This was thus a case of plain injustice which called for the issuance of the writof mandamus prayed for.

The same cannot be said of the accused. Prosecution is not ipso factopersecution. It is true that persons subjected to preliminary investigation gothrough anxiety, expenses and constraints, but in these cases, the accused havenot shown how they suffered any more prejudice than is attributable to thenature of preliminary investigation. Absent any proof to the contrary, regularand reasonable conduct of preliminary investigation accounted for the timeutilized therefor, with due regard for the accused's right to speedy dispositionof their case.

For these factors alone, there was no contravention of the accused'sright to speedy disposition of case.

A circumspect perusal of the Information, however, reveals a fatalitythat cannot be amended without causing substantial prejudice to the accused.

//

G.R. Nos. 72335-39, March 21, 19883' Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, which cited Barker v. Wingo, 407 US 514, 33L. Ed. 2d 101,92 S. Ct. 2182 (1972), and Perez v. People, G.R. No. 164763, February 12,200838 G.R. No. 122728, February 13, 1997


RESOLUTION

The Facts Charged do not

Constitute AN Offense

In their own motion to quash the information, accused Dionisio DajalosBalite, Handel Tumulak Lagunay, Edwin Tutor Vallejos, Abraham DoriaClarin, Greta Aya-ay Mende, Laura Saramosing Boloyos, and FelixMascarinas Mejorada invoke the ground that the facts charged do notconstitute an offense. While the bulk of the contentions proffered by theaccused essentially raised the argument in the de-criminalization of theoffense with the amendment of Section 42.5 of the Implementing Rules andRegulations ("/Ri?") of R.A. 9184 by Memorandum Order No. 213, there ismerit to their conclusion that the facts as charged in the Information do notconstitute an offense.

The main test to be applied in considering a motion to quash on theground that the facts charged do not constitute an offense is "whether the factsalleged, if hypothetically admitted, would establish the essential elements ofthe offense charged as defined by law. The trial court may not consider asituation contrary to that set forth in the criminal complaint or information."^^

It may be recalled that the accused were charged with violation ofSection 3 (e) of R.A. 3019. The Information dated September 11, 2017 reads:

That for the period from 4 April 2006 to 12 July 2006, or sometimeprior or subsequent thereto, in Tagbilaran City, Province of Bohol,Philippines, and within the jurisdiction of this Honorable Court, accusedCONCEPCION ONG LIM, DIONISIO DAJALOS BALITE, JOSEECHAVIA VELOSO, FELIX REALISTA UY, AMALIA REYES TIROL,ESTER CORAZON JAMISOLA GALBREATH, GODOFREDAOLAVIDES TIROL, MA. FE CAMACHO-LEJOS, BRIGIDO ZAPANTAIMBOY, and FRANCES BOBBITH DEL ROSARIO CAJES-AUZA, allhigh-ranking public officers being members of the SangguniangPanlalawigan, HANDEL TUMULAK LAGUNAY, Provincial LegalOfficer/Bids and Awards Committee (BAC) Chairman, EDWIN TUTORVALLEJOS, Provincial General Services Officer/BAC Vice-Chairman,GRETA AYA-AY MENDE, Assistant Provincial Engineer/BAC Member,LAURA SARAMOSING-BOLOYOS, Supply Officer IV/BAC Member,FELIX MASCARINAS MEJORADA, Administrative Officer/BACMember, and ABRAHAM DORIA CLARIN, Head, ProvincialMotorpool/BAC Member, all of the Provincial Government of Bohol, whilein the performance of their administrative and/or official functions andcommitting the crime in relation to office, acting with evident bad faith,manifest partiality and/or gross inexcusable negligence, conspiring andconfederating with one another, did then and there willfully, unlawfully andcriminally give Civic Merchandising, Inc. (CMI) unwarranted benefits,advantage or preference and cause undue injury to the government in theamount of PhP74,498.15 by authorizing or allowing payment to CMI orits foreign supplier through a letter of credit relative to the procurementof one unit backhoe with breaker, and to debit/deduct all chargesincidental to the opening and negotiation of the said letter of creditagainst the account of the Province of Bohol with the PhilippineNational Bank, which was actually debited, in the amount of

Soriano v. People, G.R. No. 162336, February 1,2010


RESOLUTION

PhP74,498.15, despite the prohibition under Section 42.5 of theImplementing Rules and Regulations-Part A of Republic Act No. 9184(Government Procurement Reform Act), and Memorandum Order No.119 dated 18 September 2003, issued by the Office of the President, tothe damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW. (Emphasis supplied)

A careful perusal of the facts as alleged in the Information, however,shows that the test of sufficiency has not been successfully hurdled.

Prior to its amendment. Section 42.5 of the IRR ofRA. read:


XXX

42.5. No procuring entity shall be allowed to issue a letter ofcredit in favor of a Philippine entity or to any of the latter's foreignmanufacturers or suppliers, with respect to any procurement. (Emphasissupplied)

It must be stressed that the above provision was subsequently amendedby Memorandum Order No. 213 dated May 8, 2006 (which was published onMay 12,2006 in the Manila Times). The prohibition against the issuance ofletters of credit is now no longer in effect. Section 42.5 of the IRR of R.A.9184, as amended, now states:


XXX

42.5. Procuring entities may issue a letter of credit in favor of a local orforeign suppliers; Provided, that, no payment on the letter of credit shallbe made until delivery and acceptance of the goods as certified to by theprocuring entity in accordance with the delivery schedule provided for inthe contract; Provided further, that, the cost for the opening of letter ofcredit shall be for the account of the local or foreign supplier and to beso stated in the bidding documents. (Emphasis supplied)

This provision is clear and leaves no room for interpretation. As can begleaned from Section 42.5, supra, a government entity may validly issue aletter of credit in favor of its supplier if both of the following two conditionsare met: (i) no payment on the letter of credit shall be made until delivery andacceptance of the goods; and (ii) cost for the opening of letter of credit shallbe for the account of the local or foreign supplier.

Stated differently, said law is violated only upon the concurrence ofboth conditions. Had the intent been otherwise, the provision would haveinserted the conjunctive word "or" to indicate that the non-fulfillment of eithercondition would result in its violation. As it stands, no such conjunction ispresent.

It is a rule of statutory construction that if a statute is clear, plain andfi*ee from ambiguity, it must be given its literal meaning and applied withoutinterpretation."^® This is embodied in the latin maxim ''verba legis non est

Enjoy, Inc. v. NLRC, G.R. No. 110240, July 4, 1995

People V. Concepcion Ong Lim, et al. I5 j P a g eCriminal Case No. SB-17-CRM-2199

RESOLUTION

recedenduwC\ which means that from the words of a statute there should beno departure.

Curiously, a reading of the Information reveals that only the secondcondition was allegedly contravened - that the cost of the opening of the letterof credit was charged to the account of the Province of Bohol. No mentionwas made as to the non-compliance with the other condition relating to thetime of payment by said office, nor of the date of delivery and acceptance ofthe heavy equipment purchased. The Resolution dated November 24,2015 ofthe Office of the Ombudsman may have discussed the non-delivery of theheavy equipment within the 90-day delivery schedule in the Purchase Order,but the failure to allege such material averment in the Information is fatal toits cause. Absent the allegation that both conditions were not observed, it isthus erroneous to aver that Section 42.5 of the IRR oiR.A. 9184 was violated

by the accused.

As a consequence, considering that the acts for which the accused wereindicted, as written in the Information dated September 11, 2017, do notcontravene Section 42.5 of the IRR of R.A. 9184, it cannot be said that thepresent Information passes the test of sufficiency, which mandates that thefacts alleged, if hypothetically admitted, would establish the essentialeilements of the offense charged as defined by law. Hence, the facts chargedin the Information do not constitute an offense.

On a final note, let it be said that it would stretch the facts out ofproportion if the contention of accused Balite is to be believed such that hehas a total lack of participation in the passage of SP Resolution No. 2006-387.Quite the contrary, accused Balite was one of the co-sponsors of saidResolution. He thus cannot be permitted to deny such participation.

WHEREFORE, the Motions to Dismiss respectively filed by theaccused Concepcion Ong Lim, Jose E. Veloso, Felix R. Uy, Frances BobbithDel Rosario Cajes-Auza, Amalia Reyes Tirol, Ester Corazon JamisolaGalbreath, Godoffeda Olavides Tirol, Brigido Zapanta Imboy, and Ma. FeCamacho-Lejos on ground of inordinate delay are DENIED.

The Omnibus Motion to Quash Information dated January 29, 2018filed by accused Dionisio Dajalos Balite on ground that the facts charged donot constitute an offense and the Motion to Quash the Information (Ground:Facts Charged Do Not Constitute an Offense) dated February 1,2018 filed bythe accused Handel Tumulak Lagunay, Edwin Tutor Vallejos, Abraham DoriaClarin, Greta Aya-ay Mende, Laura Saramosing-Boloyos, and FelixMascarinas Mejorada, are GRANTED.

Since it is the Information which is fatally defective for having failedto allege facts that constitute an offense, let Criminal Case No. SB-17-CRM-2199 be DISMISSED against ah accused.

The cash bonds posted by all accused are ordered released subject tothe usual accounting procedures. The Hold Departure Order issued by thisCourt on December 14, 2017 involving the following accused is set aside:

People V. Concepcion Ong Lim, et al.Criminal Case No. SB-I7-CRM-2199

RESOLUTION

16 I P a g e

Name

Concepcion Ong Lim

Dionisio Dajalos Balite

Jose Echavia Veloso

Felix Realista Uy

Amalia Reyes Tirol

Ester Corazon Jamisola Galbreath

Godofreda Olavides Tirol

Ma. Fe Camacho-Lejos

Brigido Zapanta Imboy

Frances Bobbith Del Rosario Cajes-Auza

Handel Tumulak LagunayEdwin Tutor Vallejos

Abraham Doria Clarin

Greta Aya-ay Mende

Laura Saramosing-Boloyos

Felix Mascarinas Mejorada

SO ORDERED.

MA. THERESA DOI^RES C. GOMEZ-ESTOESTAAssociate Justice

Chairperson

WE CONCUR:

V. ipRESPESESAssociate Justice

ate Justice

ATTESTATION

I attest that the conclusions in the above Resolution were reached inconsultation before the case was assigned to the writer of the opinion of theCourt's Division.

MA. THERESA DOl^RES C. GOMEZ-ESTOESTAChairperson, Seventh Division

People V. Concepcion Ong Lim, et al.Criminal Case No. SB-17-CRM-2I99

RESOLUTION

171 P a g e

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and theDivision Chairman's Attestation, it is hereby certified that the conclusions inthe above Resolution were reached in consultation before the case was

assigned to the writer of the opinion of the Court's Division.

-AMPARO ABOT^ JE-TAlPresiamg Justice

1/

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