EN BANC
[G.R. No. 220348. September 25, 2018.]
RONALD JOHN LIM AND JOHN RAYMUND DE ASIS, petitioners,vs. SANDIGANBAYAN, FIRST DIVISION, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution datedSEPTEMBER 25, 2018, which reads as follows: HTcADC
"G.R. No. 220348 (RONALD JOHN LIM and JOHN RAYMUND DE ASIS, petitioners v. SANDIGANBAYAN, FIRST DIVISION, respondent.)
RESOLUTION
This petition for certiorari1 assails the Resolutions 2 dated 28 May 2015 and 8 July 2015 issued by the Sandiganbayan, First Division, which denied the Reply with Motion for Another Judicial Determination of Probable Cause Due to Supervening Event with Prayer to Exclude Ronald John Lim and John Raymund De Asis as Accused3 and the Motion for Reconsideration, 4 respectively.
Petitioners Ronald John Lim and John Raymund De Asis are among the accused in Case No. SB-14-CRM-0240 pending before the Sandiganbayan, First Division for violation of Republic Act No. 7080 (An Act Defining and Penalizing the Crime of Plunder) involving the alleged illegal utilization of their co-accused Senator Ramon "Bong" Revilla, Jr.'s Priority Development Assistance Fund (PDAF) for the period 2006 to 2010. 5
In Cambe v. Office of the Ombudsman, 6 the Court narrated the "modus operandi" in the usage of Senator Revilla's PDAF, thus:
As alleged, the PDAF scheme commences with Napoles meeting with a legislator — in this case, Sen. Revilla — with the former giving an offer to "acquire" his PDAF allocation in exchange for a "commission" or "kickback" amounting to a certain percentage of the PDAF. Upon their agreement on the conditions of the PDAF acquisition, including the project for which the PDAF will be utilized, the corresponding IA tasked to implement the same, and the legislator's "commission" or "kickback" ranging from 40-60% of either the project cost or the amount stated in the SARO, the legislator would then write a letter addressed to the Senate President for the immediate release of his PDAF, who in turn, will endorse such request to the DBM for the release of the SARO. By this time, the initial advance portion of the "commission" would be remitted by Napoles to the legislator. Upon release of the SARO, Napoles would then direct her staff — including whistleblowers Benhur Luy (Luy), Marina Sula (Sula), and Merlina Suñas (Suñas) to prepare PDAF documents containing, inter alia, the preferred JLN-controlled NGO that will be used as a "conduit" for the implementation of the project, the project proposals of the identified NGO, and the endorsement letters to be signed by the legislator and/or his staff, all for the approval of the legislator; and would remit the remaining portion or balance of the "commission" of the legislator, which is usually delivered by her staff, Lim and De Asis. Once the documents are approved, the same would be transmitted to the IA which would handle the preparation of the Memorandum of Agreement (MOA) to be executed by the legislator's office, the IA, and the chosen NGO. Thereafter, the DBM would release the NCA to the IA concerned, the head/official of which, in turn, would expedite the transaction and release of the corresponding check representing the PDAF disbursement, in exchange for a ten percent (10%) share in the project cost. Among those tasked by Napoles to pick up the checks and deposit them to the bank accounts of the NGO concerned were Luy, Suñas, and De Asis. Once the funds are in the account of the JLN-controlled NGO, Napoles would then call the bank to facilitate the withdrawal thereof. Upon withdrawal of the said funds by Napoles' staff, the latter would bring the proceeds to the office of JLN Corporation for accounting. Napoles would then decide how much will be left in the office and how much will be brought to her residence in Taguig City. De Asis, Lim, Luy, and Suñas were the ones instructed to deliver the money to Napoles's residence. Finally, to liquidate the disbursements, Napoles and her staff would manufacture fictitious lists of beneficiaries, liquidation reports, inspection reports, project activity reports, and similar documents that would make it appear that the PDAF-funded projects were implemented when, in fact, they were not since they were actually inexistent or, in other words, "ghost" projects. Under this modus operandi, Sen. Revilla, with the help of petitioners, among others, allegedly funneled his PDAF amounting to around P517,000,000.00 to the JLN-controlled NGOs and, in return, received "commissions" or "kickbacks" amounting to at least P224,512,500.0046. n (Citations omitted)
In its Resolution dated 19 June 2014, the Sandiganbayan found probable cause against petitioners and their co-accused and, thereby, issued the corresponding warrants of arrest against them. 7
Petitioners filed a Motion for Judicial Determination of Probable Cause with Urgent Motion to Defer the Issuance of Warrant of Arrest and to Suspend Proceedings dated 13 June 2014 (Lim's) and 19 June 2014 (De Asis'). The Sandiganbayan denied the motion in its Resolution dated 22 July 2014. The bail hearing subsequently commenced. 8
During the bail hearing on 14 August 2014, Benhur K. Luy (Luy) testified that the employees of JLN, that include petitioners, performed the illegal acts involving Senator Revilla's PDAF upon the instructions of their co-accused Janet Lim Napoles (Napoles). 9
On 12 September 2014, petitioners filed before the Sandiganbayan their Reply with Motion for Another Judicial Determination of Probable Cause Due to Supervening Event with Prayer to Exclude Ronald John Lim and John Raymund De Asis as Accused (Motion for Another Judicial Determination of Probable Cause), challenging anew the Resolutions dated 19 June 2014 and 22 July 2014 of the Sandiganbayan.
Petitioners argued that Luy's testimony during the bail hearing clearly established that there was no conspiracy between petitioners and their co-accused to commit the crime of plunder, because all the employees of Napoles, including petitioners, performed the alleged illegal acts upon the instruction of Napoles. Petitioners claimed that they never participated in the "planning, preparation, and perpetration of the alleged conspiracy to defraud the government." 10
On 28 May 2015, the Sandiganbayan issued a Resolution denying the Motion for Another Judicial Determination of Probable Cause. The Sandiganbayan held:
At the outset, the Court notes that in the instant motion the accused-movants did not raise any new issue for the Court to resolve as in fact the arguments in their motion are mere restatements of their previous pleadings which had been thoroughly probed and resolved by the Court. As aptly put by the prosecution, the Court finds that what had been elicited from witness Luy during the hearings for the petition for bail already formed part of his earlier sworn statements which had likewise been passed upon by the Office of the Ombudsman during the preliminary investigation, and by the Court when it eventually found probable cause for the issuance of the warrant of arrest against the accused-movant[s], and when the Court sustained the validity of the Information against them. Hence, in the absence of a valid supervening event, there exists no justifiable reason for the Court to go over again what had been fully discussed and ably ascertained. 11 aScITE
Petitioners filed a Motion for Reconsideration, which the Sandiganbayan denied in its Resolution promulgated on 8 July 2015.
Hence, this petition for certiorari alleging the following:
1. The Sandiganbayan committed grave abuse of discretion in failing to appreciate the supervening event that took place during the bail hearing of the case against Janet Lim Napoles.
2. The Sandiganbayan committed grave abuse of discretion in ruling that the prosecution was able to prove that there is a sufficient cause for the issuance of arrest warrants against petitioners.
3. The Sandiganbayan committed grave abuse of discretion in ruling that petitioners should not be excluded in the plunder case. 12
The issue in this case is whether the Sandiganbayan committed grave abuse of discretion in denying petitioners' Motion for Another Judicial Determination of Probable Cause.
Petitioners claim that a supervening event transpired during the bail hearing on 14 August 2014, which should result in their exclusion as co-conspirators in the plunder case. Petitioners refer to the testimony of Luy, who was presented as one of the prosecution witnesses during the bail hearing. Petitioners' point to the following portions of Luy's testimony:
xxx xxx xxx
ATTY. S. DAVID:
Q: You said that you forged the signature of Atty. Cambe and other legislators, chief of staff, because this is the instruction of Janet Lim Napoles?
THE WITNESS:
A: Sa liquidation po.
(In liquidation, Sir.)
That's the instruction of Madam kase nakolekta na po. Nakolekta na kasi nakapagbigay na ng rebates, so yun po.
Q: In other words, in all the falsifications, ghost deliveries and other criminal act that you did, it's her own — because Janet Lim-Napoles asked you to do?
A: Lahat po kami empleyado, kasi empleyado lang po kami at gusto naming malaman.
xxx xxx xxx
ATTY. S. DAVID:
Q: What about John Raymund de Asis, do you know if he's an employee. If he was also acting per instruction of Janet Lim Napoles?
xxx xxx xxx
THE WITNESS:
A: Lahat po kami pati si John Lim at tsaka si Ronald John Lim, John Raymund de Asis, lahat po kami empleyado.
(All of us, sir, even Ronald John Lim and John Raymund de Asis.) 13
xxx xxx xxx
JUSTICE DE LA CRUZ:
The question is were you surprised or were you not surprised? That is the question.
THE WITNESS:
A: Hindi na po ako nasorpresa sapagkat po nung iniimbestigahan po kami, sinabi ko yung ung ano yung participation ko, ano yung mga tao na nagamit lamang po sila, na ginamit ni Madam Janet Napoles, pero hindi po kami ang magdedesisiyon sa pagkaso sapagkat ang nag-de-decide po nun kung sino po yung nagkakaso po, ang NBI o ang Ombudsman. Sila naman po ang mag-de-decide nun e.
(I was not surprised, sir, because when we were investigated I told them everything, and will not be the one to decide who will be charged, because that is the job of the NBI and Ombudsman.)
Q: So are you willing to testify for and in behalf for the benefit — for the enlightenment of the Court that according to you Ronald John Lim and John Raymund de Asis, really nagamit by Mrs. Napoles, are you willing to testify for them? HEITAD
A: Sir, bago pa po yan, during the investigation at alam po yon ni John Raymund de Asis na nag-e-effort kami na makipag-accommodate sila. Kasi sinubpinahan sila hindi sila nag-appear lang mga abogado nila. Alam namin, sir, kasi sila din driver lang din, nagamit din lang yan sila.
Q: So naaawa ka sa kanila?
DIRECTOR TORIBIO:
That is not a question, Your Honors.
THE WITNESS:
A: Hindi po, sir, naaawa. Alam ko kasi mga drivers lang sila at napag-utusan lang din yan sila. So hinihikayat naman sila po, sir, na makipag-coordinate sa amin, makipag-coordinate, but the problem, yun ang tigas-tigas ng ulo nila.
ATTY. S. DAVID:
Q: Kasi ayaw kumampi sa iyo?
JUSTICE DE LA CRUZ:
Alright. Interpret the answer.
THE INTERPRETER:
(Not pity, sir. Because we were asking them to coordinate with us but they didn't want to, because they were hard headed.)
ATTY. S. DAVID:
Q: Why? If they will not coordinate, it will change the fact na nautusan lang sila?
THE WITNESS:
A: Sir, ang ano, sir, ganito po e, magsabi lang sila ng totoo kasi yun naman yung naganap, ang nangyari sa opisina noong kami mga empleyado e. Sabihin lang nila yung totoo, yun naman ang gusto namin[g] mga witness e.
(They will just tell the truth, sir, because that's what happened when we were in the office. They will just tell the truth, sir.)
Kasi yun yung naganap. So magkukuwento lang kami kung ano yung nangyari, yung activities kung paano nangyari, nakipag-usap si Madam, nag-witness siya, kung may nakita ba siya. Ganun din ako, hindi naman kami, sir, nagpa-pa-hero or something dito.
ATTY. S. DAVID:
Q: So now you will now answer my question that you are willing to testify for Evelyn de Leon, for John Raymund, Ronald John Lim. My question is very simple, are you willing to testify for them to show that they were instructed?
DIRECTOR TORIBIO:
Your Honors, we have already —
JUSTICE DE LA CRUZ:
The witness already testified isn't it? On record.
ATTY. S. DAVID:
That's why. But for the other witnesses, like Evelyn — for the other accused in other divisions — I mean, in this division, the anti-graft, Your Honors.
JUSTICE DE LA CRUZ:
Did he not mention that they acted upon the instruction of Janet Napoles?
ATTY. S. DAVID:
All, Your Honors?
JUSTICE DE LA CRUZ:
On record. That was the testimony. 14
Contrary to petitioners' contentions, Luy's testimony does not constitute a supervening event. A supervening event consists of circumstances that transpire after the judgment becomes final, or matters that the parties were not aware of prior to or during the trial because such matters were not yet in existence at the time. 15 ATICcS
Significantly, there were no new matters raised in Luy's testimony. In fact, Luy's testimony merely reestablished the following: (1) petitioners were employees of their co-accused Napoles; (2) as such, petitioners followed Napoles's instructions; and (3) petitioners, as employees of Napoles, participated upon the instructions of Napoles in the "modus operandi" involving the illegal utilization of Senator Revilla's PDAF. Being mere employees of Napoles is petitioners' main defense, and Luy's testimony simply reiterated petitioners' participation as such in the crime charged. In addition to Luy's testimony, petitioners cite the earlier sworn statements of Luy, Merlina P. Suñas, et al. 16 to establish their innocence. In their petition, petitioners reiterate their contention in Cambe that they are mere "lowly employees of Janet Lim Napoles [who] cannot be expected to have conspired with these personalities as these persons are way out of their league." 17 Since no new matter was raised in Luy's testimony as all the matters contained therein existed even before the bail hearing, no supervening event transpired that could possibly result in the exculpation of petitioners.
As stated, petitioners made similar allegations in Cambe, to wit:
In G.R. Nos. 213477-78, De Asis accuses the Ombudsman of gravely abusing its discretion in finding probable cause against him for Plunder and violations of Section 3(e) of RA 3019, contending, inter alia, that the performance of his functions as driver and messenger of Napoles hardly constitutes overt acts of the aforesaid crimes or a willful participation thereof. In this regard, he asserts that as a mere high school graduate and former security guard, it is highly unimaginable for him to conspire with his employer and other high-ranking government officials to commit the aforesaid crimes.
xxx xxx xxx
In G.R. Nos. 213532-33, Lim argues that the Ombudsman gravely abused its discretion in finding probable cause against him for Plunder. According to him, the criminal complaints do not allege a specific action he committed that would demonstrate his involvement for the crime charged. 18
The Court rejected petitioners' arguments and upheld the Ombudsman's finding of probable cause for plunder, thus:
Records show that De Asis was designated as the President/Incorporator of KPMFI which was one of the many NGOs controlled by Napoles that was used in the embezzlement of Sen. Revilla's PDAF allocations. Moreover, whistleblowers Luy and Suñas explicitly named De Asis as one of those who prepared money to be given to the lawmaker. Said whistleblowers even declared that De Asis, among others, received the checks issued by the IAs to the NGOs and deposited the same in the bank; and that, after the money is withdrawn from the bank, he was also one of those tasked to bring the money to Janet Napoles' house. Indeed, the foregoing prove to be well-grounded bases to believe that, in all probability, De Asis conspired with the other co-accused to commit the crimes charged.
xxx xxx xxx
As correctly pointed out by the Ombudsman, whistleblowers Luy and Suñas narrated that over the course of the perpetuation of the PDAF scam, they, along with the other staff of Napoles — which includes Lim — would prepare, and thereafter deliver, the kickbacks intended for Sen. Revilla. The preparation and delivery of kickbacks to the legislator and/or his trusted staff are indeed overt acts that relate to his involvement in the PDAF scheme. To note, even if it is assumed that Lim only prepared the money and did not deliver the same as he claims, the act of preparation is still connected to the common objective of the conspiracy. Accordingly, this establishes the existence of probable cause against him for the crime charged. x x x. 19
While Cambe dealt with the finding of probable cause by the Ombudsman against petitioners, the same case discussed the Sandiganbayan's judicial determination of probable cause against petitioners' co-accused Relampagos, et al. The Court, citing De Los Santos-Dio v. Court of Appeals, 20explained, thus:
[A] judge's discretion to dismiss a case immediately after the filing of the information in court is appropriate only when the failure to establish probable cause can be clearly inferred from the evidence presented and not when its existence is simply doubtful. After all, it cannot be expected that upon the filing of the information in court the prosecutor would have already presented all the evidence necessary to secure a conviction of the accused, the objective of a previously-conducted preliminary investigation being merely to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. 21
Judicial determination of probable cause is one made by a judge after the filing of the information by the prosecutor to ascertain whether a warrant of arrest should be issued against the accused. 22 In People v. Castillo, 23 the Court distinguished the two kinds of determination of probable cause, thus:
There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant. 24
In Mendoza v. People, 25 the Court explained:
The difference is clear: The executive determination of probable cause concerns itself with whether there is enough evidence to support an Information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued. x x x.
xxx xxx xxx
While it is within the trial court's discretion to make an independent assessment of the evidence on hand, it is only for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an appellate court of the prosecutor and has no capacity to review the prosecutor's determination of probable cause; rather, the judge makes a determination of probable cause independent of the prosecutor's finding. cSEDTC
In Cambe, the Court sustained the Sandiganbayan's judicial determination of probable cause against petitioners' co-accused Relampagos, et al., thus:
In this case, the Ombudsman (and the Sandiganbayan as to Relampagos, et al.) did not err in finding probable cause against all the petitioners. Their findings are fully supported by the evidence on record and no semblance of misapprehension taints the same. Moreover, this Court cannot tag key documentary evidence as forgeries and bar testimonies as hearsay at this stage of the proceedings; otherwise, it would defy established principles and norms followed during preliminary investigation. Jurisprudence teaches us that "[i]n dealing with probable cause[,] as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved." Overall, based on the foregoing disquisitions, the standard of probable cause was adequately hurdled by the prosecution in this case. As such, no grave abuse of discretion was committed by the Ombudsman and the Sandiganbayan in the proceedings a quo. All the petitioners should therefore stand trial for the crimes they were charged.26
Similarly in this case, petitioners failed to show grave abuse of discretion on the part of the Sandiganbayan in denying their Motion for Another Judicial Determination of Probable Cause.
To repeat, the Sandiganbayan denied petitioners' Motion for Another Judicial Determination of Probable Cause on the ground that no supervening event transpired during the bail hearing since Luy's testimony "already formed part of his earlier sworn statements which had likewise been passed upon by the Office of the Ombudsman x x x and by the [Sandiganbayan] x x x." 27 The Sandiganbayan need not "go over again what had been fully discussed and ably ascertained" 28 since after all, a judicial determination of probable cause merely deals with probabilities, and does not determine whether the accused is guilty or not of the crime charged. This determination merely requires the judge to assess, based on the evidence presented, whether there is a necessity to place the accused under custody in order not to frustrate the ends of justice. This is exactly what the Sandiganbayan did.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. Thus, to constitute grave abuse of discretion, the Sandiganbayan's exercise of power to determine probable cause must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 29 This petitioners miserably failed to show.
WHEREFORE, the petition is DISMISSED." Leonen and Jardeleza, JJ., on official leave. Caguioa, J., on official business. Reyes, A., Jr., J., on leave. (adv66)
Very truly yours,
(SGD.) EDGAR O. ARICHETA
Clerk of Court
Footnotes
1.Rollo, pp. 3-16. Under Rule 65 of the Rules of Court.
2.Id. at 26-32. Penned by Associate Justice Efren N. De La Cruz, with Associate Justices Rodolfo A. Ponferrada and Rafael R. Lagos concurring.
3.Id. at 33-47.
4.Id. at 48-55.
5.Id. at 219.
6. G.R. Nos. 212014-15, 6 December 2016, 812 SCRA 537, 567-569.
7.Rollo, p. 26. In Cambe v. Office of the Ombudsman, supra, at 575, the Court narrated:
Consequently, on June 6 and 9, 2014, Informations were filed by the Ombudsman before the Sandiganbayan, charging: (a) Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of Plunder, docketed as Criminal Case No. SB-14-CRM-0240; and (b) all the petitioners (along with several others), except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019, docketed as Criminal Case Nos. SB-14-CRM-0267 to 0282.
To forestall the service of the warrant of arrest against him, Sen. Revilla filed on June 13, 2014, a Motion for Judicial Determination of Probable Cause and Deferment and/or Suspension of Proceedings. Likewise, Relampagos, et al. moved that the Sandiganbayan declare lack of probable cause against them and suspend proceedings.
On June 19, 2014, the Sandiganbayan issued a Resolution, finding probable cause against petitioners and their co-accused and, thereby, issued the corresponding warrants of arrest against them.
Thereafter, Relampagos, et al. filed an Omnibus Motion for Reconsideration of the Resolution Dated 19 June 2014 with Motion to Recall Warrants of Arrest and to Defer Arraignment.
8.Id. at 732.
9.Id.
10.Id. at 39.
11.Id. at 28.
12.Id. at 5-6.
13. TSN, 14 August 2014, pp. 124-125 (Criminal Case No. SB-14-CRM-0240: People v. Ramon "Bong" B. Revilla, Jr., et al.).
14. TSN, 14 August 2014, pp. 129-133.
15.Go v. Echavez, 765 Phil. 410 (2015).
16.Rollo, pp. 9-10.
17.Id. at 12.
18.Cambe v. Office of the Ombudsman, supra note 6, at 603, 605.
19.Cambe v. Office of the Ombudsman, supra note 6, at 604-606.
20. 712 Phil. 288, 309 (2013).
21.Cambe v. Office of the Ombudsman, supra note 6, at 608.
22.People v. Borje, 749 Phil. 719, 727 (2014).
23. 607 Phil. 754 (2009).
24.Id. at 764-765.
25. 733 Phil. 603, 610-611 (2014).
26.Cambe v. Office of the Ombudsman, supra note 6, at 608-609.
27.Rollo, p. 28.
28.Id.
29.Disini v. Sandiganbayan, 637 Phil. 351, 376 (2010); Cambe v. Office of the Ombudsman, supra note 6, at 580.
n Note from the Publisher: Copied verbatim from the official copy.