SECOND DIVISION
[G.R. No. 260160. September 12, 2022.]
VIRGINIA S. DIO, AS AUTHORIZED REPRESENTATIVE OF H.S. EQUITIES, LTD. AND WESTDALE ASSETS, LTD., petitioner, vs. TIMOTHY DESMOND, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated September 12, 2022which reads as follows:
"G.R. No. 260160(Virginia S. Dio, as authorized representative of H.S. Equities, Ltd. and Westdale Assets, Ltd., petitioner v. Timothy Desmond, respondent). — This Court resolves a Petition for Review on Certiorari1 filed under Rule 45 of the Rules of Court assailing the Decision 2 dated June 30, 2021 and the Resolution 3 dated April 6, 2022 of the Court of Appeals (CA) in CA-G.R. SP No. 165080. The CA earlier dismissed the petition for certiorari filed by petitioner Virginia S. Dio (Dio) against respondent Timothy Desmond (Desmond).
Desmond was charged with one count of Estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) and one count of Estafa under Article 315, paragraph 2 (a) of the same code. The two separate Informations against Desmond respectively state:
Criminal Case No. 515-2004For Estafa under Article 315, paragraph 1(b) of the RPC
That in or about sometime during the period from June 2002 to July 2002, in Olongapo City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did[,] then and there, willfully, unlawfully[,] and feloniously defraud Westdale Assets, Limited represented in this case by Virginia S. Delos Santos-Dio in the following manner[,] to wit the said accused received in trust and for administration from the said Virginia S. Delos Santos-Dio the amount of One Million US Dollars ($1,000,000.00) under the express obligation of using the same to pay the loan facility of the Subic Bay Marine Exploration, Inc. (SBMEI) n with First Metro Investment Corporation and to fund the construction and development of the Miracle Beach Project but the said accused, once in possession of the said amount, with grave abuse of confidence and with intent to defraud, misapplied, misappropriated[,] and converted the same for his own use and benefit by devoting it to a purpose or use different from that agreed upon and despite repeated demands made upon him to account for and to return the said amount, he failed and refused and still fails and refuses to do so, to the damage and prejudice of the said Westdale Assets, Limited in the amount of US$1,000,000.00 or its equivalent to FIFTY MILLION ([P]50,000,000.00) Pesos, Philippine Currency, the dollar being computed at the rate of [P]50.00 to [US]$1.00 which was the prevailing rate of exchange at the [time of] commission of the offense, to the damage and prejudice of the latter in the aforementioned amount.
CONTRARY TO LAW. 4
Criminal Case No. 516-2004For Estafa under Article 315, paragraph 2(a) of the RPC
That in or about and sometime in early 2001, in Olongapo City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being the officer of Subic Bay Marine Exploration (SBMEI), n acting as a syndicate and by means of deceit, did[,] then and there, willfully, unlawfully and feloniously defraud H.S. EQUITIES LIMITED, represented in this case by Virginia S. Delos Santos-Dio in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which he made to said Virginia S. Delos Santos-Dio to the effect that he had the expertise and qualifications, as well as the resources, influence, credit[,] and business transaction with the Subic Bay Metropolitan Authority (SBMA) and other financing institutions to ensure the viability of the Subic Bay Marine Exploration Ocean Adventure Project (SBMEOA), which he represented to be a qualified and legally existing investment enterprise with capacity to solicit investment from the general public, by submitting documents for the purpose, which representations he knew to be false and fraudulent and the supporting documents are similarly spurious and were only made in order to induce said Virginia S. Delos Santos-Dio to invest and deliver as in fact she invested and delivered a total amount of One Million One Hundred Fifty Thousand US Dollars ($1,150,000.00) to the said accused on the strength of said manifestations and representations and supporting documents, and said accused, once in possession of the said amount, misapplied, converted[,] and misappropriated the same to his own personal use and benefit, to the damage and prejudice of H.S. Equities Limited in the amount of US$1,150,000.00 or [P]57,500,000.00 Pesos, the dollar computed at the rate of [P]50.00 to [US]$1.00 which was the prevailing rate of exchange of a dollar to peso at the time of the commission of the offense. CAIHTE
CONTRARY TO LAW. 5
Dio is a majority stockholder of H.S. Equities, Ltd. (H.S. Equities) and the authorized representative of Westdale Assets, Ltd. (Westdale). Dio averred that she was introduced to Desmond, the Chairman and Chief Executive Officer (CEO) of Subic Bay Marine Exploratorium, Inc. (SBMEI), who convinced her to invest US$1,000,000.00 in the name of H.S. Equities and to subscribe to one share in her personal capacity. Thereafter, she made another US$150,000.00 investment. However, Dio later claimed that the assurances and representations Desmond gave her were false and fraudulent as she reportedly discovered that based on the General Information Sheet of SBMEI as of December 31, 2000, P16,192,845.23 of its P19,123,614.00 paid-up capital was paid in the form of overvalued marine mammals by JV China, Inc. (JV China), a corporation where Desmond is a major stockholder. 6
In 2002, Dio was again allegedly convinced by Desmond to fund the Miracle Beach Project which involved the development of a resort adjoining Ocean Adventure. Thus, she invested another US$1,000,000.00 for the project on behalf of Westdale. Dio averred that they agreed that P40,000,000.00 of the investment would be used to settle SBMEI's loan obligation to First Metro Investment Corporation. However, despite the alleged agreement, Desmond used the amount of US$72,362.78 to pay the salaries of SBMEI's expatriates, the payroll of its local staff, and the utilities expenses. 7
On the other hand, Desmond maintained that every disbursement made on the investments of Dio was documented and countersigned by his representative and that of Dio's. He emphasized that it was SBMEI which received the funds, and not him. 8 He admitted that the investment was used to: (1) pay the principal obligation and interests of SBMEI to the bank (US$848,000.00); (2) construct additional project at the Naval Base (US$500,000.00); and (3) finance the negative cash flow of Ocean Adventure Maritime Park (US$200,000.00). 9 He also added that as the Chairman and CEO of SBMEI, he merely acted based on the instruction of the Board of Directors. As regards the assessed value of the mammals, Desmond explained that it was the Chinese government which set their price. 10
On December 9, 2019, the Regional Trial Court (RTC), Branch 75 of Olongapo City, rendered its Joint Decision, 11 the dispositive portion of which states:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. ACQUITTING accused TIMOTHY DESMOND for the crime of Estafa under Article 315 1(b) of the Revised Penal Code under Criminal Case No. 515-2004 on the ground of reasonable doubt; and
2. ACQUITTING accused TIMOTHY DESMOND for the crime of Estafa under Article 315 2(a) of the Revised Penal Code under Criminal Case No. 516-2004 on the ground of reasonable doubt.
SO ORDERED. 12 (Emphasis in the original)
In acquitting Desmond of Estafa under Article 315, paragraph 1 (b) of the RPC, the RTC found that there was no evidence presented by the prosecution to substantiate its claim that there was an agreement on the exclusive purpose of the subject funds. 13 The RTC reasoned that if it was really the intention of the parties to invest US$1,000,000.00 to form part of the capital or equity of SBMEI, Westdale could have demanded for the corresponding subscription agreement, stock certificates, or any written agreement that would reflect their true intentions and purposes. The RTC noted that the subscription agreement which the prosecution presented pertains only to the US$1,000,000.00 investment of H.S. Equities with SBMEI, and not the alleged investment of Westdale. 14
Assuming that such agreement existed, the RTC held that the fact of conversion and/or misappropriation of funds was still not proven. 15 The RTC also found no evidence that would show that the disbursement of funds from the bank was done by Desmond himself. The RTC ruled that the majority stockholding of Desmond in SBMEI, through JV China, is not sufficient to invoke the rule on instrumentality or alter ego doctrine. 16
As for the element of prejudice on the part of Westdale, the RTC stated that this was not established because the cash balances in the special account where the investment was claimed to be deposited was never proven. 17
With regard to the charge for Estafa under Article 315, paragraph 2 (a) of the RPC, the RTC held that there was no basis to conclude that Desmond's purported misrepresentation induced Westdale to invest money with SBMEI. 18 The RTC added that the investment was used to pay SBMEI's expenses and payables, and not for Desmond's personal use and benefit. 19
Aggrieved, Dio sought recourse by filing a Petition for Certiorari before the CA. In a Decision 20 dated June 30, 2021, the CA dismissed the petition for certiorari and affirmed the Joint Decision of the RTC. 21 The CA refused to entertain the petition as Dio lacked the personality to question the criminal aspect of the Joint Decision of the RTC. The CA explained that it is only the Office of the Solicitor General (OSG) who could bring actions on behalf of the State in criminal proceedings. 22 DETACa
The CA held that it could not ascribe any grave abuse of discretion on the part of the RTC judge in not ruling on the civil liability of Desmond. Since Desmond was acquitted in the criminal case due to the absence of the elements of misappropriation or conversion and deceit, the CA ruled that no civil liability arising from the criminal charges could be imposed on him. The CA concluded that the civil liability ex delicto cannot be awarded for there is no act or omission punished by law which can serve as the source of the obligation. 23 Nonetheless, the CA stated that Dio was not left without any recourse. If the ground of acquittal is reasonable doubt as to the guilt of the accused, the CA stated that a separate civil action may be filed. 24
In a Resolution 25 dated April 6, 2022, the CA denied the motion for reconsideration filed by Dio. 26
In the present Petition, 27 Dio insisted that even if the RTC erroneously acquitted Desmond, it was duty-bound to make a finding as to his civil liability since he was acquitted on reasonable doubt, and not based on a finding that no offense was committed. 28 Dio argued that the liability of Desmond is considered as ex delicto and should be ruled upon by the judge in the same proceeding. 29 Dio also maintained that the CA erred when it refrained from entertaining the petition for certiorari due to the absence of the OSG's conformity when it was clear that she was also assailing the civil aspect of the case. 30 Dio clarified that because jeopardy has attached, Desmond's acquittal might only be assailed through a petition for certiorari. 31 In addition, Dio iterated that there was overwhelming evidence establishing the guilt of Desmond. 32
The central issue to be resolved in this case is whether this Court may take cognizance of the present petition which seeks to nullify the Decision of the CA dismissing the petition for certiorari filed by petitioner without the OSG's conformity.
The Petition must be denied.
At the outset, this Court must address the issue of whether petitioner may challenge the civil aspect of an estafa case without the conformity of the OSG.
As a rule, a criminal action commenced either by a complaint or information is prosecuted under the direction and control of a public prosecutor. 33 Nevertheless, the private complainant may intervene by counsel in the prosecution of the offense where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111. 34 The rationale for this principle is that the State is the offended party and the private complainant's interest is limited only to the civil liability arising therefrom. 35 The civil liability contemplated may include: (1) restitution; (2) reparation of damage caused; and (3) indemnification for consequential damages. 36
In case the criminal case is dismissed by the trial court or if there is an acquittal, this Court has explicitly declared that:
Contrary to the petitioners' claim that there is no room for a reconsideration of the trial court's order of dismissal, settled is the rule that if a criminal case is dismissed by the trial court or if there is an acquittal, a reconsideration thereof may be undertaken, whenever legally feasible insofar as the criminal aspect thereof is concerned. The remedy of reconsideration may be made only by the public prosecutor, or in the case of an acquittal by the State, through the OSG. On the other hand, the offended party or private complainant may file a motion for reconsideration of such dismissal or acquittal, or appeal therefrom insofar as the civil aspect thereof is concerned. If the court denies the motion for reconsideration, the private complainant or offended party may appeal or file the petition for certiorari or mandamus, if grave abuse amounting to excess or lack of jurisdiction is shown and the aggrieved party has no right of appeal or adequate remedy in the ordinary course of law. 37 (Italics in the original; emphasis and underscoring supplied)
In challenging the dismissal of the case or the acquittal of the accused, it is settled that the private complainant, through a private counsel, may file a motion for reconsideration or appeal its civil aspect. In case of a denial of the motion for reconsideration, the private complainant may file an appeal or a petition for certiorari or mandamus, provided that the requirements under Rule 65 are met. 38 In such case, the private complainant need not secure the conformity of the public prosecutor. 39
The availability of the remedy of filing a motion for reconsideration or an appeal effectively proscribes the right to resort to a special civil action for certiorari under Rule 65 because one of the requirements to avail this remedy is that "there be no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. 40 Noticeably, in the present case, petitioner committed a fatal error when she did not file any motion for reconsideration or an appeal to assail the civil aspect of the Joint Decision of the RTC before proceeding to institute a petition for certiorari in the CA. While the stringent application of the requirements prescribed in Section 1, Rule 65 admits exceptions, no exceptional circumstance to justify petitioner's omission to file a motion for reconsideration or appeal the Joint Decision of the RTC was shown here.
The existence and availability of the remedy of filing an appeal prohibits the resort to certiorari as one of the requirements for the latter remedy is that there should be no appeal. It is settled that "[c]ertiorari is not and cannot be made a substitute for an appeal where the latter remedy is available but was lost through fault or negligence." 41 Likewise, this Court has stressed that the filing of a motion for reconsideration is a condition sine qua non before a resort to a certiorari may be permitted. 42 The rationale behind this is to afford "an opportunity for the court to correct any actual or perceived error attributed to it by reexamination of the legal and factual circumstances of the case." 43 Without compliance with the requirements for the filing of a special civil action for certiorari, the CA properly denied the petition.
Consequently, as petitioner neither filed any motion for reconsideration nor appealed the Joint Decision of the RTC, the period for her to challenge it was not suspended. All told, the Joint Decision of the RTC dated December 9, 2019 is final and executory. aDSIHc
Nonetheless, even on the merits, the petition must be denied. It is worthy to highlight the declaration of the CA that since respondent was acquitted due to the absence of the elements of misappropriation or conversion and deceit, no civil liability arising from the criminal charges could be imposed on him. Thus, it was correctly concluded that civil liability ex delicto cannot be awarded for there is no act or omission punished by law which can serve as the source of the obligation. 44
Assuming arguendo that petitioner properly filed a petition for certiorari with the CA, the present Petition for Review on Certiorari must still be denied. It is observed that in reiterating the supposed overwhelming evidence against respondent in this petition, she is essentially asking this Court to assess evidence already considered, and factual issues already resolved during the trial. The arguments of petitioner are not limited to just the civil aspect of the case. It is apparent that the present petition for review on certiorari was filed not only to preserve petitioner's interest in the civil aspect of the case, but also to seek respondent's conviction. To stress, the participation of the private complainant in the criminal aspect of the case cannot be done without the conformity of the OSG. Thus, petitioner's recourse must fail.
As a final point, it must be underscored that as a rule, issues dealing with the sufficiency of evidence and the relative weight accorded by the lower court cannot be raised in a petition for review on certiorari under Rule 45 of the Rules of Court as this mode of appeal is limited only to questions of law. It is not the function of this Court to analyze or weigh all over again evidence already considered in the proceedings below. 45 To emphasize, the arguments raised by petitioner are not pure questions of law. The question of whether there is sufficient evidence to convict respondent of the charges against him is a factual one that is generally outside the ambit of this Court's authority to ascertain in a petition for review on certiorari. While there are exceptions to this rule, none of the exceptions exists in this case.
FOR THESE REASONS, the Petition for Review on Certiorari is DENIED.
SO ORDERED." (Leonen, J., on official leave; Lazaro-Javier, J., Acting Chairperson per Special Order No. 2909 dated September 9, 2022)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1. Rollo, Vol. I, pp. 33-77.
2. Penned by Associate Justice Emily P. Aliño-Geluz, with Associate Justices Victoria Isabel A. Paredes and Angelene May W. Quimpo-Sale, concurring; id. at 11-25.
3. Id. at 27-30.
4. Id. at 12.
5. Id. at 12-13.
6. Id. at 14.
7. Id. at 14-15.
8. Id. at 15.
9. Id.
10. Id. at 16.
11. Penned by Acting Presiding Judge Marifi P. Chua; id. at 153-176.
12. Id. at 176.
13. Id. at 170.
14. Id.
15. Id. at 170-171.
16. Id. at 171.
17. Id. at 172.
18. Id. at 174-175.
19. Id. at 175.
20. Id. at 11-25.
21. Id. at 24.
22. Id. at 22.
23. Id. at 23.
24. Id. at 24.
25. Id. at 27-30.
26. Id. at 30.
27. Id. at 33-76.
28. Id. at 50.
29. Id. at 51.
30. Id. at 52-55.
31. Id. at 55-56.
32. Id. at 57-75.
33. RULES OF COURT, Rule 110, Sec. 5.
34. RULES OF COURT, Rule 110, Sec. 16.
35. Yokohama Tire Philippines, Inc. v. Reyes, G.R. No. 236686, February 5, 2020, citing Cu v. Ventura, G.R. No. 224567, September 26, 2018; Cu v. Small Business Guarantee and Finance Corporation, 815 Phil. 617, 628 (2017); Chiok v. People of the Philippines, 774 Phil. 230, 245 (2015).
36. Article 104, RPC.
37. Castañeda v. People of the Philippines, G.R. No. 241729, July 8, 2020, citing Cu v. Small Business Guarantee and Finance Corporation, supra note 35, at 628-629; Mobilia Products, Inc. v. Umezawa, 493 Phil. 85, 108 (2005), See also Yokohama Tire Philippines, Inc. v. Reyes, G.R. No. 236686, February 5, 2020.
38. Mobilia Products, Inc. v. Umezawa, supra note 37.
39. Id.
40. RULES OF COURT, Rule 65. Sec. 1.
41. Bugarin v. Palisoc, 513 Phil. 59, 66-67 (2005).
42. Republic of the Philippines v. Bayao, 710 Phil. 279, 287 (2013).
43. Id.
44. Rollo, Vol. I, p. 23.
45. Heirs of Racaza v. Spouses Abay-abay, 687 Phil. 584, 590 (2012).
nNote from the Publisher: Copied verbatim from official document. Subic Bay Marine Exploration, Inc. (SBMEI) should be Subic Bay Marine Exploratorium, Inc. (SBMEI).
nNote from the Publisher: Copied verbatim from official document. Subic Bay Marine Exploration (SBMEI) should be Subic Bay Marine Exploratorium, Inc. (SBMEI).