THIRD DIVISION
[A.C. No. 10803. April 17, 2017.]
IMELDA S. YAGONG, complainant,vs. CITY PROSECUTOR NEOPITO ED G. MAGNO and ASSISTANT CITY PROSECUTOR JOSEPH M. APAO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated April 17, 2017, which reads as follows:
"A.C. No. 10803 (Imelda S. Yagong v. City Prosecutor Neopito Ed G. Magno and Assistant City Prosecutor Joseph M. Apao) — The instant administrative complaint filed by Complainant Imelda S. Yagong against City Prosecutor Neopito Ed G. Magno and Assistant City Prosecutor Joseph M. Apao, both from the City Prosecution Office, Island Garden City of Samal, Davao del Norte, stemmed from a criminal complaint for violation of Presidential Decree (PD) No. 1612, otherwise known as the "Anti-Fencing Law of 1979", entitled "Edsar A. Maghinay v. Frederick Lendon Monteclar, Jesus A. Gonzales and Marchelle Yagong" docketed as NPS No. XI-07-INV-14I-00226 1 (Anti-Fencing case).
Marchelle Yagong, one of the respondents in the Anti-Fencing case, is complainant's son. Complainant claimed that during the clarificatory conference, complainant tried to take note of the fact that Edsar Maghinay admitted that the stealing incident of the fighting cocks happened on September 23, 2014, instead of September 22, 2014 as reflected in Maghinay's Affidavit, but Apao cautioned complainant from taking notes on the matters discussed during the clarificatory conference. Complainant further claimed that Apao, in an insulting manner, told complainant that the latter and her company will be charged should they violate the order. Complainant maintained that Apao's actuation was highly improper and irregular.
Complainant cited signs of partiality, discrimination, and evil motive of personal vengeance and reprisal committed by respondents, such as:
1. The entire City Prosecution Office of IGACOS inhibited themselves from resolving the criminal complaint filed by complainant against Mr. Wilmer Villabrille simply because complainant happened to be a witness against the respondents in two administrative cases filed before this Court;
2. Apao found 2 probable cause for the filing of an Information for Murder against Edwin San Juan (San Juan), just because complainant was the witness of San Juan;
3. The bias and discriminatory actuations of respondents were so apparent when a certain Prosecutor Garcia and Administrative Clerk Patricio Colinares refused to accept the counter-charges interposed by San Juan; and
4. As expected, Apao resolved to indict complainant's son together with Frederick Lendon Monteclar (Monteclar) and Jesus A. Gonzales (Gonzales) for violation of PD 1612 by simply declaring that Maghinay owned the fighting cocks on the basis of an "insignificant and absurd justification" not even alleged in Maghinay's complaint.
Complainant claimed that the respondents' reprehensible acts are in violation of Rule 6.02, 3 Canon 6 of the Code of Professional Responsibility (CPR). Further, respondents violated their oath as a lawyer when they used their public office and position in delaying the complainant with malice and bad faith.
On the other hand, Apao asserts that he was never actuated by bias for or against any of the parties to cases assigned to him for preliminary investigation. Apao claimed that complainant was actuated by extreme personal hatred because he indicted complainant's other son, Inmel Fritz S. Yagong, for the crime of theft, who is now a fugitive from justice after the Regional Trial Court (RTC), Branch 34 of Panabo City, Davao del Norte found the latter guilty of the crime charged. As to the complainant's allegation that Apao prevented complainant from taking notes during the clarificatory hearing, Apao asserts that the clarificatory conference is part of the preliminary investigation and the prosecutors are mandated to keep in strict confidence all matters relating to the preliminary investigation of a case until the day its resolution is promulgated. Thus, Apao's prohibition of taking down notes during the clarificatory conference was due to his firm belief that such is in keeping with the rule on confidentiality.
After examining the instant complaint and a careful evaluation of the pleadings filed by the parties as well as the respective pieces of evidence, the Court resolves to dismiss the instant administrative complaint.
In disciplinary proceedings against lawyers, public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed to practice law. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. 4
In administrative cases against lawyers, the burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if the complainant establishes the complaint with clearly preponderant evidence. 5 Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has a greater weight than that of the other. It means evidence which is more convincing to the court as worthy of belief compared to the presented contrary evidence. 6
Rule 6.02, 7 Canon 6 of the CPR is particularly directed to lawyers in government service, enjoining them from using one's public position to: (1) promote private interests; (2) advance private interests; or (3) allow private interests to interfere with public duties. It is well to note that a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official. He may be disciplined by this Court as a member of the Bar only when his misconduct also constitutes a violation of his oath as a lawyer. 8
The allegation of the complainant to the effect that Apao is biased and partial against the complainant has no merit. Additionally, complainant's allegation that Apao issued resolutions adverse to a party whenever complainant acts as a witness of such person is speculative and is unsupported by the evidence presented. It is well-established that a public prosecutor is given 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 should be held for trial. 9
In the present case, complainant failed to present any evidence that Apao was motivated by malice, bad faith, vengeance and hate in issuing the resolutions. While Magno is also charged in the present administrative complaint, the complainant, however, failed to specifically mention any act or present any evidence that shows that Magno committed misconduct, dishonesty, falsehood or had misused the rules of procedure.
From the foregoing, it is clear that the case should be dismissed for utter lack of merit. Complainant failed to overcome her burden of proof to show that respondents were unworthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney.
WHEREFORE, the Court DISMISSES the administrative complaint against City Prosecutor Neopito Ed G. Magno and Assistant City Prosecutor Joseph M. Apao for utter lack of merit.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 44-47.
2. Resolution dated December 27, 2013, Id. at 20-22.
3. Rule 6.02 — A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.
4.Fe A. Ylaya v. Atty. Glenn Carlos Gacott, A.C. No. 6475, January 30, 2013.
5.Atty. Alfredo L. Villamor, Jr. v. Attys. E. Hans A. Santos and Agnes H. Maranan, A.C. No. 9868, April 22, 2015.
6.Supra, Note 4.
7.Supra, Note 3.
8.Eduardo A. Abella v. Ricardo G. Barrios, Jr., A.C. No. 7332, June 18, 2013.
9.People of the Philippines v. Maximo A. Borje, Jr., et al., G.R. No. 170046, December 10, 2014.