G.R. No. 205698, July 31, 2018,
♦ Decision,
Bersamin, [J]
♦ Dissenting Opinion,
Carpio, [J] Leonen, [J]
♦ Separate Opinion,
Bernabe, [J] Tijam, [J]
♦ Separate Concurring Opinion,
Caguioa, [J]
SEPARATE OPINION
PERLAS-BERNABE, J.:
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I. G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730, and 230680.
These petitions commonly relate to the determination of probable cause against herein respondents Delfin S. Lee (Delfin Lee), Dexter L. Lee (Dexter Lee), Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty. Alex M. Alvarez (Alvarez; collectively respondents). In particular:
(a) The petitions in G.R. Nos. 2056981 and 2057802 were respectively filed by petitioners, the Home Development Mutual Fund (HDMF; also known as Pag-IBIG) and the Department of Justice (DOJ), to assail the Court of Appeals' (CA) Rulings3 in CA-G.R. SP No. 121346 which set aside the DOJ' s Review Resolution4 dated August 10, 2011 finding probable cause to indict Sagun, among others, for the crime of syndicated estafa, and ordered the dismissal of the case and the quashal of the warrant of arrest issued against her;
(b) The petitions in G.R. Nos. 2094465 and 2094896 were respectively filed by petitioners, the People of the Philippines (People) and HDMF, to assail the CA's Ruling7 in CA-G.R. SP No. 127690 which annulled and set aside the Regional Trial Court (RTC) of Pampanga, Branch 42's (PampangaRTC) May 22, 2012 Resolution8 and August 22, 2012 Resolution9 judicially finding probable cause against Alvarez, inter alia, for the same crime of syndicated estafa, and hence, ordered the dismissal of the case and the quashal of the warrant of arrest issued against him;
(c) The petitions in G.R. Nos. 20985210 and 21014311 were respectively filed by HDMF and the People to assail the CA's ruling 12 in CAG. R. SP No. 127553 which also annulled and set aside the aforesaidPampanga-RTC's May 22, 2012 Resolution13 and August 22, 2012 Resolution 14 judicially finding probable cause against Delfin Lee, inter alia, for the same crime of syndicated estafa, and ordered the dismissal of the case and the quashal of the warrant of arrest issued against him;
(d) The petitions in G.R. Nos. 22845215 and 22873016 were respectively filed by HDMF and the People to assail the CA's Ruling17 in CAG. R. SP No. 127554 which also annulled and set aside the Pampanga-RTC Resolutions18 judicially finding probable cause against Dexter Lee, inter alia, for the same crime of syndicated estafa, and ordered the dismissal of the case and the quashal of the warrant of arrest issued against him; and
(e) The petition in G.R. No. 23068019 filed by Salagan assails the CA's March 18, 2016 Decision20 and March 16, 2017 Resolution21 in CA-G.R. SP No. 134573 which affirmed the Pampanga-RTC's May 22, 2012 Resolution22 and January 29, 2014 Resolution,23 and accordingly, upheld the latter court's finding of probable cause for syndicated estafa and issuance of warrant of arrest insofar as Salagan is concerned.
These cases stemmed from the HDMF's filing of a ComplaintAffidavit24 for syndicated estafa, as defined and penalized under Article 315 (2) (a) of the Revised Penal Code (RPC) in relation to Presidential Decree No. (PD) 1689,25 and the National Bureau of Investigation's (NBI) referral letter dated October 29, 2010,26 by virtue of which, the DOJ conducted a preliminary investigation27 against respondents, along with several others. In brief, it was alleged that Delfin Lee, as the President and Chief Executive Officer of petitioner Globe Asiatique Realty Holdings Corporation (GA), entered into funding commitment agreements and other transactions with HDMF wherein he made false and fraudulent representations to HDMF that GA had interested buyers in its Xevera projects in Bacolor and Mabalacat, Pampanga, when in truth, Delfin Lee knew fully well that the corporation didnot have such buyers. 28 The fraud against HDMF was allegedly perpetrated by the submission by GA of names of fictitious buyers and documents to HDMF as part of certain housing loan applications that led to fund releases by HDMF in favor of GA. 29 In addition, GA purportedly employed a "special buyers" scheme whereby it recruited persons who did not have any intention to buy its housing units in Xevera, but, in exchange for a fee, lent their names and Pag-IBIG membership to GA so that the said corporation could use the same in obtaining fund releases from HDMF. 30 As stated in the Information, Delfin Lee, together with Dexter Lee, Sagun, and Salagan, in their respective capacities as Executive Vice-President/ Chief Finance Officer/ Treasurer, Documentation Department Head, and Accounting/ Finance Department Head of GA, 31 as well as Alvarez, as Foreclosure Department Manager of HDMF,32 acted as a syndicate formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme of soliciting funds from the general public, each performing a particular act in furtherance of the common design.
After due proceedings, the DOJ issued a Review Resolution33 dated August 10, 2011 (DOJ Review Resolution) finding probable cause to indict respondents for the crime complained of. The DOJ found that the elements of syndicated estafa are present in the instant case, considering that: (a) GA entered into various Funding Commitment Agreements (FCAs )34 and a Memorandum of Agreement (MOA)35 with HDMF whereby the former warranted, inter alia, that the borrowers are bona fide Pag-IBIG members who had been properly evaluated and approved in accordance with the guidelines of Pag-IBIG Housing Loan Program; (b) by virtue of the said FCAs and MOA, HDMF was induced to release to GA the aggregate amount of ₱7,007,806,000.00; (c) GA had reneged on said warranties as it, among others, employed fictitious buyers to be able to obtain said funds from HDMF; (d) when HDMF discovered such irregularities and stopped its fund releases to GA, the latter's almost 100% monthly collection/remittance stopped as well, thereby strongly indicating that the monthly amortizations being remitted by GA were being paid from the fund releases it was receiving from HDMF; and (e) HDMF was prejudiced in the amount of ₱6,653,546,000.00 which has yet to be returned by GA. 36
Accordingly, the Information37 for syndicated estafa was filed before the Pampanga-RTC.38 Later, the said court, in a Resolution39 dated May 22, 2012, judicially determined the existence of probable cause against respondents, and consequently, ordered the issuance of warrants of arrest against them. Through various proceedings in different fora, respondents assailed the finding of probable cause against them, and eventually, such issue was raised before the Court through the aforesaid petitions.
The ponencia partially granted the petitions in G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730, and230680 in that it found probable cause to prosecute Delfin Lee, Dexter Lee, Sagun, Salagan, and Alvarez for simple estafa only, as defined and penalized under Article 315 (2) (a) of the RPC, and accordingly, directed the DOJ to amend the respondents' Information to reflect such indictment. The ponencia ruled that there is sufficient basis to support a reasonable belief that respondents, namely: Delfin Lee, Dexter Lee, Sagun, Salagan, and Alvarez were probably guilty of simple estafa. It ratiocinated that through the representations and undertakings made by GA in its "special buyers" scheme, these respondents were able to induce HDMF in entering into the various FCAs to the latter's damage and prejudice. The ponencia went on to particularize the respondents' individual acts which made them criminally accountable for perpetrating the "special buyers" scheme, as follows: (a) Delfin Lee, for signing the FCAs and MOA in behalf of GA, and the checks issued by GA to the "special buyers" and HDMF; (b) Dexter Lee, for giving the orders to recruit "special buyers" and co-signing those checks issued to the "special buyers" and HDMF; (c) Sagun, as head of GA's Documentation Department, for collating the documents submitted by the borrowers/buyers, checking if the same are complete and duly accomplished, and verifying whether or not the said borrowers/buyers are indeed Pag-IBIG members with updated contributions or existing housing loans; (d) Salagan, as head of GA's Accounting/Finance Department, for reviewing all requests for payment from on-site projects and preparing the corresponding checks, ensuring that all loan takeouts are duly recorded, and that amortizations are timely remitted to HDMF; and (e) Alvarez, for notarizing crucial pieces of documents purportedly from affiants who turned out to be fictitious and/or non-existing, which directly led to HDMF releasing its funds to GA. 40
However, the ponencia held that respondents cannot be indicted for syndicated estafa, pointing out that the association of the said respondents did not solicit funds from the general public as there was no allegation that GA had been incorporated to defraud its stockholders or members, and that in fact, the only complainant in the estafa charges is a single juridical entity, i.e., HDMF, which is not a stockholder or member of GA.41
Stripped of its technicalities42 and as will be explained hereunder, I agree with the ponencia in: (a) finding probable cause to indict respondents Delfin Lee, Dexter Lee, Sagun, Salagan, and Alvarez for simple estafa only, and not syndicated estafa; and (b) directing the DOJ to amend the Information against them accordingly.
Article 315 (2) (a) of the RPC reads:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
x x x x
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.
The elements of estafa as contemplated in this provision are the following: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage.43
In relation thereto, Section 1 of PD 1689 states that syndicated estafa is committed as follows:
Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers' association, or funds solicited by corporations/associations from the general public.
Thus, the elements of syndicated estafa are: (a) estafa or other forms of swindling, as defined in Articles 315 and 316 of the RPC, is committed; (b) the estafa or swindling is committed by a syndicate of five (5) or more persons; and (c) defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers' association, or of funds solicited by corporations/associations from the general public.44
With these in mind, it is my opinion that there is probable cause to believe that estafa under Article 315 (2) (a) of the RPC was committed by all of the respondents, considering that HDMF was induced to enter into various FCAs and a MOA with GA based on its understanding that GA would only process the applications of bona fide Pag-IBIG members who have been properly evaluated and approved in accordance with the program's housing guidelines. Because of the execution of such FCAs and MOA, HDMF released funds to GA via numerous loan takeouts for the latter's Xevera Project. However, unknown to HDMF, GA implemented fraudulent designs, such as the "special buyers" scheme, to make it appear that it had various buyers/borrowers for the Xevera Project, when in truth, most of such buyers/borrowers were fictitious, not qualified to avail of such loans, or even persons who merely signed documents in exchange for money offered to them by GA. Case law states that:
Deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.45
In this case, HDMF was evidently prejudiced by the scheme employed by GA, through its officers and agents, as HDMF unduly released public funds to GA, which it had yet to recover. In fact, as soon as HDMF stopped its fund releases to GA, the latter's Performing Accounts Ratio for the Xevera Project went from 95% to 0%.
Notably, the foregoing is based on either undisputed facts or the audit findings conducted by HDMF functionaries. Anent the latter, the audit conducted by HDMF was made pursuant to its investigatory powers which is incidental to its power "[t]o ensure the collection and recovery of all indebtedness, liabilities and/or accountabilities, including unpaid contributions in favor of the Fund arising from any cause or source or whatsoever, due from all obligors, whether public or private x x x" under Section 13 (q) of Republic Act No. (RA) 9679,46 known as "Home Development Mutual Fund Law of 2009, otherwise known as Pag-IBIG (Pagtutulungan sa Kinabukasan: lkaw, Bangko, Jndustriya at Gobyerno)Fund." Therefore, it cannot be denied that the audit was an official function, which hence, must be accorded the presumption of regularity. Case law states that "[t]he presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable intendment will be made in support of the presumption and in case of doubt as to an officer's act being lawful or unlawful, construction should be in favor of its lawfulness."47
In an attempt to shift the "blame" on HDMF for not properly verifying the borrowers/buyers submitted by GA, it has been contended that upon the execution of the MOA, GA was already relieved of its warranties: (a) on the proper evaluation and approval of loans of the borrowers/buyers; and (b) against misrepresentation of its agents/employees for loan accounts evaluated and approved by GA.
However, this contention is untenable, considering the inescapable fact that at the time of the execution of the MOA on July 13, 2009, GA had already executed around nine (9) different FCAs with HDMF, with the latter having released funds amounting to more or less ₱2.9 Billion for the purpose. As such, the crime of estafa was, in all reasonable likelihood, already consummated even before the execution of the MOA.
Furthermore, even assuming arguendo that the provisions of the MOA indeed superseded GA's aforesaid warranties and that the obligation to evaluate and approve the loan applications of the borrowers/buyers of the Xevera Project was already with HDMF, GA remains bound to undertake corrective measures to address any defects regarding the membership and housing loan eligibility of its buyers:
In cases where defects in HDMF membership and housing loan eligibility of the buyer are found, the DEVELOPER shall undertake the following corrective measures to address the same:
1) Require the borrower to complete the required number of contributions, in case the required 24 monthly contributions is not met;
2) Require the borrower to update membership contributions, in case the membership status is inactive;
3) Require the borrower to update any existing Multi-Purpose Loan (MPL) if [it] is in arrears or pay in full if the same has lapsed;
4) Buyback the account in case the member has a HDMF housing loan that is outstanding, cancelled, bought back, foreclosed or subject to [dacion en pago]. 48
Aside from these obligations, it goes without saying that the GA is obliged to only provide and process the applications of legitimate buyers.1âwphi1 Verily, it would be nonsensical to suppose that HDMF would release funds to GA had it known that the list of borrowers/buyers and the accompanying documents submitted to it by the latter were fraudulent or fictitious.
Moreover, the HDMF's failure to prevent the fraudulent maneuverings allegedly employed by GA - whether through the negligence of its staff or otherwise - does not negate the fact that fraud was committed against the former. The scheme's discovery is already after the fact and hence, does not discount the posterior commission of fraud. At any rate, it should be highlighted that HDMF, is a government-owned and controlled corporation (GOCC)49 and hence, an instrumentality of the State. Thus, the rule that the State is not bound by the omission, mistake or error of its officials or agents50 applies.
As for the respondents' respective roles in the fraudulent scheme establishing the existence of probable cause against them, I fully agree with - and thus, need not repeat - the ponencia's findings. In light of the foregoing, it is my submission that there is probable cause to believe that all respondents, i.e., Delfin Lee, Dexter Lee, Sagun, Salagan, and Alvarez, conspired and confederated with one another in order to commit the fraudulent acts against HDMF. In this regard, jurisprudence instructs that "in determining whether conspiracy exists, it is not sufficient that the attack be joint and simultaneous for simultaneousness does not of itself demonstrate the concurrence of will or unity of action and purpose which are the bases of the responsibility of the assailants. What is determinative is proof establishing that the accused were animated by one and the same purpose." 51
That it was GA and HDMF - both corporate entities - which dealt with each other, and not respondents in their personal capacities, does not eliminate the latter's criminal liabilities in this case, if so established after trial. Jurisprudence provides that "if the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty shall be imposed upon the directors, officers, employees or other officials or persons responsible for the offense. The penalty referred to is imprisonment, the duration of which would depend on the amount of the fraud as provided for in Article 315 of the [RPC]. The reason for this is obvious: corporation, partnership, association or other juridical entities cannot be put in jail. However, it is these entities which are made liable for the civil liabilities arising from the criminal offense. This is the import of the clause 'without prejudice to the civil liabilities arising from the criminal offense. "’52
Also, it deserves pointing out that while respondents do not deny the existence of fictitious/non-existent buyers and that loan documents were falsified/simulated, they disclaim knowledge of the fraudulent scheme committed against HDMF, as it was allegedly its rogue agents which actually defrauded GA. Clearly, the foregoing constitutes denial and as such, is a matter of defense, the merits of which are better threshed out during trial. 53
Finally, it is important to elucidate that the RTC of Makati City, Branch 58's (Makati-RTC) January 30, 2012 Resolution in Civil Case No. 10-1120 granting GA and Delfin Lee's motion for summary judgment, and consequently, its complaint for specific performance and damages against HDMF has no bearing, considering its fundamental disparities with the present case. In particular, Civil Case No. 10-1120 involves a cause of action arising from the contractual relations of GA/ Delfin Lee and HDMF, which is adjudged under the evidentiary threshold of preponderance of evidence. On the contrary, this case (stemming from Criminal Case No. 18480) only seeks to determine whether probable cause exists to file a criminal case in court against the accused. The ruling in the former cannot be thus binding on the latter. At any rate, the ruling in Civil Case No. 10-1120 was premised on the fact that the July 13, 2009 MOA supposedly superseded, amended, and modified the provisions of the FCAs in that the power to approve the housing applications had already been removed from GA and in turn, was relegated to only loan counseling. Therefore, HDMF cannot renege on the performance of their contract on the ground that the defaulting buyers were fictitious and spurious.
As previously stated, the MOA was executed on July 13, 2009, and at that time, GA had already executed around nine (9) different FCAs with HDMF, with the latter having released funds amounting to more or less ₱2.9 Billion for the purpose.54 Thus, even prior to the said amendment, the commission of fraud and the resulting damage to HDMF had, in all reasonable likelihood, already existed, which, in tum, means that the crime of estafa had already been probably consummated. The probable consummation of the crime is not erased by the succeeding partial novation55 of the contract between the parties. Case law dictates that criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damage suffered by the offended party. 56 A criminal offense is committed against the People and the offended party may not waive or extinguish the criminal liability that the law imposes for the commission of the offense.57
In light of the foregoing, the first element of syndicated estafa has been shown to be present. Correlatively, as the estafa was allegedly committed by at least five ( 5) individuals, there exists a "syndicate" within the purview of PD 1689, and thus, the second element of syndicated estafa is likewise present. However, the third and last element of syndicated estafa, as discussed by the ponencia, 58 is not present in this case.
As earlier stated, the third element of syndicated estafa is that the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers' association, or of funds solicited by corporations/associations from the general public. Essentially, the wide-scale defraudation of the public through the use of corporations/associations is the gravamen of syndicated estafa. This is clearly inferred from the "Whereas Clauses" of PD 1689 which read:
WHEREAS, there is an upsurge in the commission of swindling and other forms of frauds in rural banks, cooperatives, "samahang nayon(s)'', and farmers' associations or corporations/associations operating on funds solicited from the general public;
WHEREAS, such defraudation or misappropriation of funds contributed by stockholders or members of such rural banks, cooperatives, "samahang nayon(s)", and farmers' [association], or of funds solicited by corporations/associations from the general public, erodes the confidence of the public in the banking and cooperative system, contravenes the public interest, and constitutes economic sabotage that threatens the stability of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least minimized, by imposing capital punishment on certain forms of swindling and other frauds involving rural banks, cooperatives, "samahang nayon(s)", and farmers' [association] or corporations/ associations operating on funds solicited from the general public[.]59
After a careful study of this case, I find the third element to be lacking. Based on the allegations of the complaint, it is apparent that the thrust thereof is respondents' purported defraudation of HDMF which induced it to release funds. This is not a criminal case filed by members of the general public, such as buyers of the Xevera Project, claiming that rural banks, cooperatives, "samahang nayon(s)," and farmers' association or corporations/associations solicited funds from them, but later on resulted into them being defrauded. To be sure, the fact that the funds released by HDMF are in the nature of public funds does not mean that syndicated estafa was committed. The operative factor is whether or not the fraud was committed against the general public. On this point, the case of Galvez v. CA60 illumines, among others, that PD 1689 does not apply when, regardless of the number of the accused, (a) the entity soliciting funds from the general public is the victim and not the means through which the estafa is committed, or ( b) the offenders are not owners or employees who used the association to perpetrate the crime, in which case, Article 315 (2) (a) of the Revised Penal Code applies:
In sum and substance and by precedential guidelines, we hold that, first, Presidential Decree No. 1689 also covers commercial banks; second, to be within the ambit of the Decree, the swindling must be committed through the association, the bank in this case, which operate on funds solicited from the general public; third, when the number of the accused are five or more, the crime is syndicated estafa under paragraph 1 of the Decree; fourth, if the number of accused is less than five but the defining element of the crime under the Decree is present, the second paragraph of the Decree applies; x x x fifth, the Decree does not apply regardless of the number of the accused, when, (a) the entity soliciting funds from the general public is the victim and not the means through which the estafa is committed, or (b) the offenders are not owners or employees who used the association to perpetrate the crime, in which case, Article 315 (2) (a) of the Revised Penal Code applies.61
Although the Information filed before the RTC and the consequent warrants of arrest issued against respondents were for the crime of syndicated estafa, and not for simple estafa, the case of Spouses Hao v. People62 teaches that said issuances remain valid but a formal amendment of the Information should be made:
With our conclusion that probable cause existed for the crime of simple estafa and that the petitioners have probably committed it, it follows that the issuance of the warrants of arrest against the petitioners remains to be valid and proper. To allow them to go scot-free would defeat rather than promote the purpose of a warrant of arrest, which is to put the accused in the court's custody to avoid his flight from the clutches of justice.
Moreover, we note that simple estafa and syndicated estafa are not two entirely different crimes. Simple estafa is a crime necessarily included in syndicated estafa. An offense is necessarily included in another offense when the essential ingredients of the former constitute or form a part of those constituting the latter.
Under this legal situation, only a formal amendment of the filed information under Section 14, Rule 110 of the Rules of Court is necessary; the warrants of arrest issued against the petitioners should not be nullified since probable cause exists for simple estafa.63 (Emphases and underscoring supplied)
Accordingly, it is my position that respondents should instead be indicted for simple estafa only. For this purpose, the DOJ should be directed to amend the Information so as to charge respondents accordingly. Meanwhile, the warrants of arrest issued against them must stand.
II. G.R. No. 209424.
The petition in G.R. No. 20942464 was filed by HDMF against GA, Delfin Lee, and respondent Tessie G. Wang (Wang; a purported fully-paid buyer of 22 houses and lots in GA's Xevera Project)65 assailing the CA's ruling66 in CA-G.R. SP No. 128262. In the said case, the CA upheld the Makati-RTC's January 30, 2012 Resolution67 in Civil Case No. 10-1120 granting the motion for summary judgment filed by GA, et al. and thereby, ordered HDMF to comply with its obligations under the MOA, FCAs, and Collection Servicing Agreements. Dissatisfied, HDMF filed a motion for reconsideration,68 which was, however, denied by the Makati-RTC in a December 11, 2012 Resolution69 on the ground that the same was filed by HDMF's engaged private counsel, Yorac Arroyo Chua Caedo & Coronel Law Firm (Yorac Law), without, however, the requisite approval of the Office of the Government Corporate Counsel (OGCC) and the Commission on Audit (COA); hence, the RTC treated the motion as a mere scrap of paper which did not toll the running of the period of appeal.70 Consequently, HDMF filed a petition for certiorari71before the CA, which was dismissed mainly on the following grounds: (a) the certiorari petition is not the proper remedy, considering that the Makati-RTC's ruling was in the nature of a final judgment and hence, subject to an ordinary appeal under Rule 41 of the Rules of Court;72 and (b) the Makati-RTC did not gravely abuse its discretion in dismissing HDMF's motion for reconsideration as it failed to comply with the rules, among others, the requisite authorization from the OGCC and the COA.73
In ruling for the grant of G.R. No. 209424, the ponencia prefatorily held that the Resolution74 dated January 30, 2012 of the Makati-RTC which granted summary judgment in GA, et al.'s favor is, strictly speaking, only a partial summary judgment rendered in the context of Section 4, Rule 3575 of the Rules of Court. It then explained that such Resolution only resolved the issue of whether or not GA, et al. were entitled to specific performance, and explicitly stated that the issue on the proper amount of damages to be awarded to them shall still be subject to a presentation of evidence. Since there is still a matter to be resolved by the Makati-RTC, such Resolution partakes of the nature of an interlocutory order. As such, HDMF correctly availed of the remedy of filing a petition for certiorari before the CA. 76
The ponencia further found that Yorac Law Firm failed to sufficiently prove that it had the authority to represent HDMF in the proceedings before the Makati-RTC. In this regard, it pointed out that since HDMF is a GOCC, it may only engage private counsels with the written conformity of the Solicitor General or the Government Corporate Counsel and the written concurrence of the COA. Unfortunately, however, Yorac Law Firm was only able to provide a Certification77 dated January 10, 2013 signed by the Office of the Supervising Auditor, COA Corporate Auditor Atty. Fidela M. Tan (Atty. Tan), stating that the COA purportedly authorized HDMF to engage Yorac Law Firm as private counsel. According to the ponencia, this cannot be given evidentiary weight not only because it is merely an attestation that the COA supposedly concurred in the HDMF's retainer agreement with Yorac Law Firm, but also because it failed to comply with Sections 24 and 25, Rule 13278 of the Rules of Court. 79
Finally, the ponencia recognized that since Yorac Law Firm was not authorized to appear on behalf of HDMF before the Makati-RTC proceedings, the motion for reconsideration it filed before such court did not toll the reglementary period for the filing of a petition for certiorari before the CA. Ordinarily, such petition filed by HDMF before the CA should be dismissed for being filed out of time. However, the ponencia held that in the broader interest of justice, as well as the peculiar legal and equitable circumstances in this case, the petition for certiorari before the CA should not be dismissed outright due to strict adherence to technical rules of procedure, but must be resolved on its merits. Hence, the ponencia ordered the remand of the case to the CA for the determination of the propriety of the Makati-RTC's issuance of a partial summary judgment. 80
While I concur with the ponencia insofar as it found that HDMF correctly availed of the remedy of certiorari before the CA, I respectfully disagree with its ruling that Y orac Law Firm had no authority to act as counsel on HDMF's behalf, and that the Makati-RTC must be directed to conduct further proceedings in Civil Case No. 10-1120 with dispatch so that the aggrieved party may appeal the Makati-RTC's issuance of a partial summary judgment in said case.
The general rule is that GOCCs, such as HDMF, are enjoined to refrain from hiring private lawyers or law firms to handle their cases and legal matters. However, in exceptional cases, the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be, and the written concurrence of the COA shall first be secured before the hiring or employment of a private lawyer or law firm. 81
In this case, these written authorizations were complied with by HDMF. Records show that Atty. Tan issued a Certification82 that the COA concurred in the engagement by HDMF ofYorac Law Firm as its private counsel.83 The said certification is presumed to have been issued by the said officer in the regular performance of her duties and hence, should be deemed valid, absent any showing to the contrary. Besides, as pointed out by one of the dissenting justices before the CA, if the Makati-RTC was uncertain about the authority of private counsel to represent HDMF, "fairness and prudence dictate that the [same] be given a chance to provide the form of proof acceptable to the RTC,"84 especially considering the public interest involved in this case. To note, records show that the only party who objected to Yorac Law Firm's representation of HDMF was respondent Wang, who filed a motion to expunge85 on the sole ground of lack of COA conformity. This motion was never resolved by the Makati-RTC,86 hence, leaving HDMF in the dark on the merits of the motion to expunge and on the necessity to submit further proof of the COA's authorization. Meanwhile, anent the approval of the OGCC, records disclose that the same was procured through the letters dated December 28, 201087 and December 5, 2011 88 signed by Government Corporate Counsel Raoul C. Creencia.89 In fine, it was grave error for the Makati-RTC to deny the HDMF's motion for reconsideration.
In light of the foregoing submissions and under ordinary circumstances, court procedure dictates that the case be remanded for a resolution on the merits. However, when there is already enough basis on which a proper evaluation of the merits may be had - as in this case, considering the copies of various pleadings and documents already in the possession of the Court - the Court may dispense with the time-consuming procedure of remand in order to prevent further delays in the disposition of the case and to better serve the ends of justice.90 Thus, I hereby submit that the Court may already resolve the issue of the propriety of the Makati-RTC's issuance of a partial summary judgment in this case.
Jurisprudence is clear that "[s]ummary judgment is not warranted when there are genuine issues which call for a full blown trial. The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial."91
A perusal of the pleadings filed by the parties in Civil Case No. 10- 1120 would show that genuine issues of fact were raised,92 and thus, negated the remedy of summary judgment. As encapsulated in the dissent before the CA, these genuine issues are: (a) whether GA was limited to conduct loan counseling instead of loan approval under the agreements; (b) whether GA, in fact, conducted loan approvals instead of mere loan counseling; (c) whether HDMF may buyback accounts despite the absence of a notice to buyback from HDMF; (d) whether HDMF refused to release collectibles under the agreements; (e) whether GA is guilty of fraud; (j) whether HDMF had factual basis to cancel the CSAs and FCAs; and (g) whether GA's acts were constitutive of breach of its warranties under the agreements.93 Clearly, the Makati-RTC could not turn a blind eve on these triable material factual issues by the mere expedient of saying that the July 13, 2009 MOA superseded the provisions of the FCAs and thus, relegated GA 's authority to mere loan counseling, and therefore, rendered it unaccountable for the defaulting buyers, who turned out to be fictitious and spurious. Surely, the alleged shift of GA's authority to mere loan counseling - assuming the same to be true - still does not definitively settle the foregoing issues and hence, cannot be the sole consideration to grant GA, et al.'s complaint for specific performance.94 As such, the Makati-RTC's rulings were evidently tainted with grave abuse of discretion, and hence, correctly assailed by HDMF through a petition for certiorari.
For these reasons, it is my view that since it is already apparent from the records that the Makati-RTC erroneously rendered a partial summary judgment, it is but proper to order a remand of the case to the same court for the conduct of trial on the merits.
III. G.R. Nos. 208744 and 210095.
To recount, the petition in G.R. No. 20874495 was filed by the DOJ against Delfin Lee to assail the CA's July 8, 201396 and August 14, 201397 Resolutions in CA-G.R. SP No. 130404 which essentially disallowed the DOJ's petition for certiorari for being filed out of time. In this case, the DOJ sought to nullify the Order98 dated April 10, 2013 of the Regional Trial Court of Pasig City, Branch 167 (Pasig-RTC) in Civil Case No. 73115 enjoining the DOJ's preliminary investigation in the criminal cases entitled "National Bureau of Investigation/Evelyn B. Niebres, et al. v. Globe Asiatique Realty Corp./ Delfin S. Lee, et al." (NPS Docket No. XVI-INV-1OL-00363; Niebres Complaint), "National Bureau of Investigation/Jennifer Gloria (Gloria), et al. v. Globe Asiatique Realty Corp. I Delfin S. Lee, et al. (NPS Docket No. XVIINV- l IB-00063), and National Bureau of Investigation/Maria Fatima Kayona (Kayona), et al. v. Globe Asiatique Realty Corp./ Delfin S. Lee, et al." (NPS Docket No. XVI-INV-1 lC-00138) for syndicated estafa. 99
On the other hand, the petition in G.R. No. 210095100was filed by the DOJ also against Delfin Lee to assail the CA's June 26, 2013 101 and November 11, 2013 102 Resolutions in CA-G.R. SP No. 130409 which likewise dismissed the DOJ's petition for certiorari for being filed out of time. The petition docketed as CA-G.R. SP No. 130409 is the same petition as that in CA-G.R. SP No. 130404, which was its initial docket number. The problem arose when the petition in CA-G.R. SP No. 130404 was filed by the DOJ without indicating the proper docket number by inadvertence. This prompted the CA to assign a new docket number to the petition, i.e., CA-G.R. SP No. 130409, and the raffling thereof to another ponente and division. 103 Eventually, the petition was dismissed outright for having been filed out of time. 104
Verily, I agree with the ponencia's holding in G.R. Nos. 208744 and 210095, considering that it is clear that the DOJ never intended to flout the rules nor employ any dilatory or underhanded tactic as its failure to state the initial docket number to its certiorari petition was by sheer inadvertence. As such, the CA should have relaxed the rules and allowed the filing of said petition, following case law which states that "[l]apses in the literal observance of a rule of procedure will be overlooked when they arose from an honest mistake, [and] when they have not prejudiced the adverse party." 105
More importantly, the Pasig-RTC gravely abused its discretion in enjoining106 the preliminary investigation of the aforesaid criminal cases mainly on the basis of Makati-RTC's ruling in Civil Case No. 10-1120 - which, as already adverted to, should be subject to re-evaluation. Clearly, the Pasig-RTC's reliance on such basis is misplaced because such civil case involves a cause of action arising from the contractual relations of GA/Delfin Lee and HDMF; whereas the preliminary investigation proceedings in the aforementioned criminal cases seek to determine whether probable cause exists to file criminal cases in court against the accused, this time based on the alleged double sales fraudulently perpetrated against the home-buyers/private complainants Niebres, Gloria, and Kayona, et al. Given the unmistakable variance in issues, and considering too that the evidentiary thresholds applied in civil cases are different from criminal cases, the ruling in the former would not be binding on the latter.
Thus, for these reasons, I agree with the ponencia's ruling that the April 10, 2013 writ of preliminary injunction of the Pasig-RTC should be lifted and quashed. The conduct of preliminary investigation in the three other (3) criminal complaints against Delfin Lee, among others, docketed as NPS Docket No. XVI-INV-lOL-00363, NPS Docket No. XVI-INV-l lB-00063, and NPS Docket No. XVI-INV-l lC-00138 for syndicated estafa should not have been enjoined. As such, the rulings of the Pasig-RTC and the CA regarding this matter should be rectified.
CONCLUSION
In conclusion, I hereby vote as follows:
(a) The petitions in G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730, and 230680 should be PARTLY GRANTED. For the reasons discussed in this Opinion, the public prosecutor should be DIRECTED to amend the Information in Criminal Case No. 18480 so as to charge respondents Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex M. Alvarez only for simple estafa, and not syndicated estafa. Meanwhile, the warrants of arrest issued against them STAND;
(b) The petition in G.R. No. 209424 should be GRANTED. The Decision dated October 7, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 128262, affirming the Resolutions dated January 30, 2012 and December 11, 2012 of the Regional Trial Court of Makati, Branch 58 (Makati-RTC) in Civil Case No. 10- 1120, should be REVERSED and SET ASIDE. A new one should be ENTERED directing the REMAND of the case to the Makati-RTC for the conduct of a full-blown trial on the merits; and
(c) The petitions in G.R. Nos. 208744 and 210095 should be GRANTED. The Resolution dated August 14, 2013 in CA-G.R. SP No. 130404 and the Resolution dated June 26, 2013 in CAG. R. SP No. 130409 of the CA, affirming the Resolution dated April 10, 2013 of the Regional Trial Court of Pasig City, Branch 167 in Civil Case No. 73115, should be REVERSED and SET ASIDE. Consequently, the April 10, 2013 writ of preliminary injunction issued by the said court should be LIFTED and QUASHED. The Department of Justice should be allowed to proceed with the preliminary investigation of the three (3) criminal complaints against Delfin S. Lee, among others, docketed as NPS Docket No. XVI-INV-10L-00363, NPS Docket No. XVI-INV-l lB-00063, and NPS Docket No. XVI-INV-11C-00138.
ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
1 Rollo (G.R. No. 205698), Vol. I. pp. 111-198.
2 Rollo (G.R. No. 205780), Vol. I, pp. 8-82.
3 See CA Decision dated October 5, 2012 and CA Resolution dated February 11, 2013, both penned by Associate Justice Angelita A. Gacutan with Associate Justices Mariflor Punzalan Castillo and Francisco P. Acosta concurring. Rollo (G.R. No. 205698), Vol. I, pp. 24-57 and 59-74.
4 Id. at 405-451. Penned by OTC, Senior Deputy State Prosecutor Theodore M. Villanueva and approved by Prosecutor General Claro A. Arellano.
5 Rollo (G.R. No. 209446), Vol. I, pp. 42-148.
6 Rollo (G.R. No. 209489), Vol. I, pp. 36-150.
7 Rollo (G .R. No. 209446), Vol. I, pp. 153-173. Penned by Associate Justice Edwin D. Sorongon with Associate Justices Hakim S. Abdulwahid and Marlene Gonzales-Sison concurring.
8 Id. at 237-255. Penned by Judge Maria Ami faith S. Fider-Reyes.
9 This resolves the motion for reconsideration of Alvarez only. Id. at 256-260.
10 Rollo (G.R. No. 209852), Vol. I, pp. 45-135.
11 Rollo (G.R. No. 210143), Vol. I, pp. 49-161.
12 See CA Decision dated November 7, 2013 penned by Associate Justice Franchito N. Diamante with Associate Justices Agnes Reyes Carpio and Melchor Q. C. Sadang concurring. Rollo (G.R. No. 209852), Vol. I. pp. 192-220.
13 Id. at 254-272.
14 This resolves the motions of Delfin Lee and Dexter Lee. Id. at 273-285.
15 Rollo (G.R. No. 228452), Vol. I, pp. 3-120.
16 Rollo (G.R. No. 228730), Vol. I, pp. 36-148.
17 See CA Decision dated November 16, 2016 penned by Associate Justice Ramon Paul L. Hernando with Associate Justices Jose C. Reyes, Jr. and Stephen C. Cruz concurring. Rollo (G.R. No. 228452), Vol. I, pp. 144-164.
18 Id. at 209-227 and 228-240.
19 Rollo (G.R. No. 230680) Vol. I, pp. 3-92.
20 Id. at 343-369. Penned by Associate Justice Ramon A. Cruz with Associate Justices Rodil V. Zalameda and Henri Jean Paul B. Inting concurring.
21 Id. at 370-372.
22 Id. at 114-132.
23 See id. at 22.
24 The Complaint-Affidavit dated October 29, 2010 was filed by the Officer-in-Charge of HDMF, Emma Linda B. Farria; rollo (G.R. No. 205698), Vol. l, pp. 339-350.
25 Entitled "INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR ESTAFA" (April 6, 1980).
26 See preliminary investigation report dated October 29, 2010; rollo (G.R. No. 205698), Vol. l, pp. 330- 338.
27 See report dated December 10, 2010; id. at 400-404.
28 See rollo (G.R. No. 205698), Vol. II, p. 613.
29 See id.
30 See id. at 614.
31 Rollo (G.R. No. 205698), Vol. I, p. 407.
32 Id. at 428.
33 Id. at 405-451.
34 See id. at 414.
35 Dated July 13, 2009. Rollo (G.R. No. 205698), Vol. IV, pp. 2055-2060.
36 See rollo (G.R. No. 205698), Vol. I, pp. 436-441.
37 Dated August 25, 2011. Rollo (G.R. No. 205698), Vol. II, pp. 612-616.
38 Docketed as Criminal Case No. 18480.
39 Rollo (G.R. No. 209466), Vol. I, pp. 237-255.
40 See ponencia, pp. 43-44.
41 See id. at 36-40.
42 The procedural flaws in the petitions filed by Sagun, Delfin Lee, Dexter Lee, and Alvarez in G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730, and 230680 have been adequately addressed by Senior Associate Justice Antonio T. Carpio in his Dissenting Opinion (see pp. 14-23), which discussion I fully subscribe to.
43 People v. Tibayan, 750 Phil. 910, 919 (2015), citing People v. Chua, 695 Phil. 16, 32 (2012).
44 Id. at 269, citing Galvez v. CA, 704 Phil 463, 472 (2013).
45 Galvez v. CA, id. at 470; citation omitted.
46 Entitled "AN ACT FURTHER STRENGTHENING THE HOME DEVELOPMENT MUTUAL FUND, AND FOR OTHER PURPOSES," approved on July 21, 2009.
47 Bustillo v. People. 634 Phil. 54 7, 556 (2010).
48 See Section 3 (c) of the July 13, 2009 MOA; rollo (G.R. No. 205698), Vol. IV, p. 2057.
49 See RA 9679.
50 China Banking Corp. v. Commission of Internal Revenue, G.R. No. 172509, February 4, 2015, 749 SCRA 525, 539.
51 People v. Gerero, G.R. No. 213601, July 27, 2016, 798 SCRA 702, 707, citing Quidet v. People, 632 Phil. I, 11-12(2010).
52 Ong v. CA, 449 Phil. 691, 710 (2003); emphasis and underscoring supplied.
53 See Shu v. Dee, 734 Phil. 204, 216-217 (2014 ).
54 See rol!o (G.R. No. 205698), Vol. I, p. 414.
55 "[T]he effect of novation may be partial or total. There is partial novation when there is only a modification or change in some principal conditions of the obligation. It is total, when the obligation is completely extinguished." (Ong v. Bogñalbal, 533 Phil. 139, 156 [2006]).
56 See Metropolitan Bank and Trust Company v. Reynando, 641 Phil. 208, 220 (2010).
57 People v. Gervacio, 102 Phil. 687, 688 (1957).
58 See ponencia, pp. 36-39.
59 Emphases and underscoring supplied.
60 See supra note 44.
61 Id. at 474-475; citations omitted, emphasis and underscoring supplied.
62 743 Phil. 204 (2014).
63 Id. at 219-220; citations omitted.
64 Rollo (G.R. No. 209424), Vol. I, pp. 143-283.
65 See id. at 299.
66 See Decision dated October 7, 2013, penned by Associate Justice Stephen C. Cruz (id. at 14-34). Associate Justices Elihu A. Ybañez and Danton Q. Bueser issued their respective Separate Concurring Opinions (id. at 37-40 and 35-36); while Associate Justices Magdangal M. De Leon and Myra V. Garcia Fernandez issued separate Dissenting Opinions (id. at 41-63 and 64-68).
67 Rollo (G.R. No. 209424), Vol. II, pp. 433-452. Rollo (G.R. No. 209852), Vol. I, pp. 296-315. Penned by Presiding Judge Eugene C. Paras.
68 Dated February 24, 2012. Rollo (G.R. No. 209424), Vol. III, pp. 1264-1296.
69 Rollo (G.R. No. 209424), Vol. II, pp. 453-459.
70 See id. at 455-457.
71 Dated January 14, 2013. Rollo (G.R. No. 209424), Vol. I, pp. 347-431.
72 See id. at 306-308 and 311.
73 See id. at 310.
74 Rollo (G.R. No. 209424), Vol. II, pp. 433-452. Rollo (G.R. No. 209852), Vol. I, pp. 296-315. Penned by Presiding Judge Eugene C. Paras.
75 Section 4, Rule 35 of the Rules of Court reads:
Section 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.
76 See ponencia, pp. 23-27.
77 Rollo (G.R. No. 209424), Vol. IV, p. 1493.
78 Sections 24 and 25, Rule 132 of the Rules of Court read:
Section 24. Proof of official record. - The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul-general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.
Section 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.
79 See ponencia, pp. 28-31.
80 See id. at 31-32 and 49.
81 See PHIVIDEC Industrial Authority v. Capitol Steel Corporation, 460 Phil. 493, 503 (2003), citing Memorandum Circular No. 9 dated August 27, 1998.
82 Rollo (G.R. No. 209424), Vol. IV, p. 1493.
83 Pertinent portions of the January I 0, 2013 Certification read:
This is to certify that the Commission on Audit (COA), has concurred in the Retainer Agreement entered into by and between the Horne Development Mutual Fund (HDMF) and Yorac, Arroyo, Chua, Caedo & Coronel Law Firm, for the latter to provide legal services to the HDMF in connection the cases filed by or against Globe Asiatique Realty Holdings Corporation, Mr. Delfin S. Lee, its officers, employees and agents and such other cases that arose out of or in relation to the Globe Asiatique Realty Holdings Corporation issues. This certification is issued to attest to the truth of the foregoing and for whatever legal purposes it may serve. (Id.)
84 Rollo (G.R. No. 209424), Vol. I, p. 51.
85 Dated December 9, 2011. Rollo (G.R. No. 209424), Vol. III, pp. 1214-1224.
86 Rollo (G.R. No. 209424), Vol. I, p. 206.
87 Rollo (G.R. No. 209424), Vol. Ill, pp. 1494-1495.
88 Id. at I 496- I 497.
89 See id at 1494 and 1496. Pertinent portions of the December 28, 2010 and December 5, 2011 letters read:
December 28, 2010 letter
This refers to your request for authority to engage the services of external counsel who will handle the cases filed by or against the Globe Asiatique Holdings Corp. In view thereof, and pursuant to Office of the Government Corporate Counsel (OGCC) Memorandum Circular I, Series of2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated August 29, 1998, Home Development Mutual Fund (HDMF) is hereby authorized to engage the services of x x x Yorac Arroyo Chua Caedo & Coronel Law Firm to handle the aforesaid cases, subject to the control and supervision of the OGCC.
December 5, 2011 letter
This confirms and ratifies the engagement of external counsel for the handling of the cases filed by or against the Globe Asiatiquie Holding Corporation, and such other cases that arose out of or in relation to the Globe Asiatique Corporation Issues. In view thereof, and pursuant to the Office's Memorandum Circular I, Series of 2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated 29 August 1998, we confirm and ratify the engagement of Yorac Arroyo Chua Caedo & Coronel Law Firm to handle such cases and the submissions of the law firm in connection therewith, subject to the control and supervision of the OGCC.
90 See Joto 's Kiddie Cars/Fun4Kids/Marlo U. Cabili v. Caballa, G.R. No. 230682, November 29, 2017, citing Sy-Vargas v. The Estate of Rolando Ogsos, Sr., G.R. No. 221062, October 5, 2016, 805 SCRA 438, 448.
91 Nocom v. Camerino, 598 Phil. 214, 233-234 (2009).
92 See rollo (G.R. No. 209424), Vol. I, pp. 56-59.
93 See Dissenting Opinion of CA Justice Magdangal M. De Leon; id. at 59.
94 Dated November 13, 2010. Rollo (G.R. No. 209424), Vol. II, pp. 753-774.
90 See Jolo's Kiddie Cars/Fun4Kids/Marlo U. Cabili v. Caballa, G.R. No. 230682, November 29, 2017, citing Sy-Vargas v. The Estate of Rolando Ogsos, Sr., G.R. No. 221062, October 5, 2016, 805 SCRA 438, 448.
91 Nocom v. Camerino, 598 Phil. 214, 233-234 (2009).
92 See rollo (G.R. No. 209424), Vol. I, pp. 56-59.
93 See Dissenting Opinion of CA Justice Magdangal M. De Leon; id. at 59.
94 Dated November 13, 2010. Rollo (G.R. No. 209424), Vol. II, pp. 753-774.
95 Rollo (G.R. No. 208744), Vol. I, pp. 28-87.
96 See CA Minute Resolution issued by Executive Clerk of Court Ill Caroline G. Ocampo-Peralta, MNSA; id. at 122.
97 Id. at 118-121. Penned by Associate Justice Francisco P. Acosta with Associate Justices Fernanda Lampas Peralta and Angelita A. Gacutan concurring.
98 Id. at 195-198. Penned by Judge Rolando G. Mislang.
99 See id. at 33.
100 Rollo (G.R. No. 210095). Vol. I, pp. 35-131.
101 Id. at 136-137. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Danton Q. Bueser concurring.
102 Id. at 139-142.
103 See id. at 139-140.
104 Id. at 137.
105 Aguam v. CA, 388 Phil. 587, 595 (2000).
106 While case law in Samson v. Guingona (401 Phil. 167, 172 [2000]) provides that criminal cases may be enjoined in the following instances: (!)when the injunction is necessary to afford adequate protection to the constitutional rights of the accused; (2) when it is necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question which is subjudice; (4) when the acts of the officer are without or in excess of authority; (5) where the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) where the Court has no jurisdiction over the offense; (8) where it is a case of persecution rather than prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; none of these are applicable in the instant case.
JULY 31, 2018
EN BANC
G.R. No. 205698 - HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, Petitioner, v. CHRISTINA SAGUN, Respondent.
G.R. No. 205780 - DEPARTMENT OF JUSTICE, represented by Secretary Leila De Lima, State Prosecutor Theodore M. Villanueva, and Prosecutor General Claro A. Arellano, and THE NATIONAL BUREAU OF INVESTIGATION (NBI), Petitioners, v. CHRISTINA SAGUN, Respondent.
G.R. No. 208744 - DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 209424 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION, DELFIN S. LEE, in his capacity as the President of the Corporation, and TESSIE G. WANG, Respondents.
G.R. No. 209446 - PEOPLE OF THE PHILIPPINES, Petitioner, v. ALEX M. ALVAREZ, Respondent.
G.R. No. 209489 - HOME DEVELOPMENT MUTUAL FUND, Petitioner, v. ATTY. ALEX M. ALVAREZ, Respondent.
G.R. No. 209852 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 210095 - DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 210143 - PEOPLE OF THE PHILIPPINES, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 228452 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. DEXTER L. LEE, Respondent.
G.R. No. 228730 - PEOPLE OF THE PHILIPPINES, Petitioner, v. DEXTER L. LEE, Respondent.
G.R. No. 230680 - CRISTINA SALAGAN, Petitioner, v. PEOPLE OF THE PHILIPPINES and HOME DEVELOPMENT MUTUAL FUND (HDMF), Respondents.
SEPARATE CONCURRING OPINION
CAGUIOA, J.:
x - - - - - - - - - - - - - - - - - - - - - - - x
I concur with the ponencia insofar as it finds no probable cause to charge and arrest respondents Delfin S. Lee (Delfin Lee), Dexter L. Lee (Dexter Lee), Christina Sagun (Sagun), Atty. Alex M. Alvarez (Alvarez) and Cristina Salagan (Salagan) for the crime of syndicated estafa penalized under Presidential Decree 1689 (PD 1689).1 I share the ponencia's view that respondents do not qualify as a syndicate as defined in PD 1689.
Under the Revised Penal Code (RPC), any person who shall defraud another by any of the means set forth in Articles 315 and 316 shall be liable for estafa.
On April 6, 1980, President Ferdinand E. Marcos issued PD 1689 which treats the crime of syndicated estafa. Section 1 thereof, which incorporates Articles 315 and 316 by reference, reads:
SECTION 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the [RPC], as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, "samahang nayon(s)", or farmers' associations, or of funds solicited by corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.
Hence, to sustain a charge for syndicated estafa, the following elements must be established: (i) estafa or other forms of swindling as defined in Articles 315 and 316 of the RPC is committed; (ii) the estafa or swindling is committed by a syndicate of five or more persons; and (iii) defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperatives, "samahang nayon(s)," or farmers' associations or of funds solicited by corporations/associations from the general public.2
The resolution of the Petition requires the examination of the second and third elements.
Second Element
In concurrence with the ponencia, and with the separate opinions of Senior Associate Justice Antonio T. Carpio and Associate Justice Estela M. Perlas-Bernabe, I find that the evidence presented against Alvarez establish his participation as the fifth conspirator in the fraudulent scheme subject of the charge.
To note, the Information in Criminal Case No. 18480 charging respondents with syndicated estafa, implicates Alvarez under the following terms:
x x x x
That in carrying out the aforesaid conspiracy x x x accused x x x Alvarez, did then and there unlawfully, feloniously and knowingly notarize crucial pieces of documents, consisting, among others, of the buyer's affidavit of income, promissory note, and developer's affidavit (by Ms. Cristina Sagun) alleging compliance with the conditions set by [Home Development Mutual Fund (HDMF)], all of which are essential for the processing and approval of the purported transaction; x x x.3
As aptly explained by Justice Carpio, Alvarez admitted during the course of investigation that he notarized documents4 for Globe Asiatique Realty Holdings Corporation (GA) in exchange for a fixed monthly fee even as he was employed as manager of HDMF's Foreclosure Department,5 and that he often notarized these documents in GA's head office during the same period.6
Notably, these acts became subject of the case entitled Alex M Alvarez v. Civil Service Commission and Home Development Fund, docketed as G.R. No. 224371.7 Therein, the Court found Alvarez liable for grave misconduct, dishonesty and conduct prejudicial to the best interest of the service, and thus, dismissed Alvarez from service with finality. 8
Again, as Justice Carpio astutely observes, Alvarez, being the manager of HDMF's Foreclosure Department, evidently knew that the documents he was notarizing for GA (e.g., Affidavits of Income, Contracts to Sell and promissory notes, among others) were essential for the processing and approval of the housing loans in question. In the words of Justice Carpio, this glaring conflict of interest, coupled with the NBI's finding that majority of the documents corresponding to the fictitious accounts had been notarized by Alvarez,9 show that he had knowledge of the fraudulent scheme perpetrated by GA, and had actively participated therein.
In this connection, Associate Justice Leonen opines that Section 1 of PD 1689 does not specify the number of individuals who must be charged for an act of fraud to qualify as syndicated estafa, but requires only that the number of individuals acting out of a common design to defraud be at least five, 10 since certain contingencies may prevent all individuals involved from standing trial. 11 Hence, he stresses that the primary task of investigators and prosecutors in such cases is to "demonstrate the fraudulent scheme employed by five or more individuals," 12 and, thereafter, "to demonstrate how an individual accused took part in effecting that scheme." 13
Justice Leonen's observations are well-taken. Indeed, the identification of the individuals involved in the perpetration of syndicated estafa and the determination of the nature of their participation are tasks that lie with investigators and prosecutors. Indeed, it is possible to demonstrate the existence of a fraudulent scheme employed by five or more individuals without having to bring each of them to trial. However, it bears emphasis that at the point when the identity and participation of the individual perpetrators are determined to the extent sufficient to demonstrate the fraudulent scheme, investigators and prosecutors are left with no reason to drop said individuals from the criminal charge and exclude them from trial. And should the investigators and prosecutors fail, or decide not to include these known malefactors in the charge of syndicated estafa, then the Court is left with no alternative but to determine the sufficiency of the said charge only on the basis of the number of malefactors so included as accused - this number going into the very definition of the law as to what constitutes syndicated estafa.
In any case, I submit that the second element of syndicated estafa is already satisfied in view of Alvarez's participation in the fraudulent scheme, as discussed.
Third Element
Considering that the fraudulent scheme in question was perpetrated by an entity which does not solicit funds from the general public, I find that the third element of syndicated estafa is absent. Thus, I likewise concur with the ponencia in this respect:
In Galvez v. Court of Appeals14(Galvez), Asia United Bank (AUB) charged private respondents therein with syndicated estafa for having deceived AUB into granting their corporation, Radio Marine Network Smartnet, Inc. (RMSI), a P250-million Omnibus Credit Line based on the misrepresentation that RMSI had sufficient capital and assets to secure the financial accommodation. Resolving the case, the Court ruled that fraud only qualifies as syndicated estafa under PD 1689 when the corporation or association through which it is committed is an entity which receives contributions from the general public:
On review of the cases applying the law, we note that the swindling syndicate used the association that they manage to defraud the general public of funds contributed to the association. Indeed, Section 1 of [PD] 1689 speaks of a syndicate formed with the intention of carrying out the unlawful scheme for the misappropriation of the money contributed by the members of the association. In other words, only those who formed and manage associations that receive contributions from the general public who misappropriated the contributions can commit syndicated estafa.
[Respondents], however, are not in any way related either by employment or ownership to AUB. They are outsiders who, by their cunning moves were able to defraud an association, which is the AUB. Theirs would have been a different story, had they been managers or owners of AUB who used the bank to defraud the public depositors.
This brings to fore the difference between the case of Gilbert Guy, et al., and that of People v. Balasa, People v. Romero, and People v. Menil, Jr.
In People v. Balasa, the accused formed the Panata Foundation of the Philippines, Inc., a non-stock/non-profit corporation and the accused managed its affairs, solicited deposits from the public and misappropriated the same funds.
We clarified in Balasa that although, the entity involved, the Panata Foundation, was not a rural bank, cooperative, samahang nayon or farmers' association, it being a corporation, does not take the case out of the coverage of [PD] 1689. [PD] 1689's third "whereas clause" states that it also applies to other "corporations/associations operating on funds solicited from the general public." It is this pronouncement about the coverage of "corporations/associations" that led us to the ruling in our [April 25, 2012] Decision that a commercial bank falls within the coverage of [PD] 1689. We have to note though, as we do now, that the Balasa case, differs from the present petition because while in Balasa, the offenders were insiders, i.e., owners and employees who used their position to defraud the public, in the present petition, the offenders were not at all related to the bank. In other words, while in Balasa the offenders used the corporation as the means to defraud the public, in the present case, the corporation or the bank is the very victim of the offenders.
Balasa has been reiterated in People v. Romero, where the accused Martin Romero and Ernesto Rodriguez were the General Manager and Operation Manager, respectively, of Surigao San Andres Industrial Development Corporation, a corporation engaged in marketing which later engaged in soliciting funds and investments from the public.
A similar reiteration was by People v. Menil, Jr., where the accused Vicente Menil, Jr. and his wife were proprietors of a business operating under the name ABM Appliance and Upholstery. Through ushers and sales executives, the accused solicited investments from the general public and thereafter, misappropriated the same. 15 (Emphasis supplied)
Based on the foregoing, I find that the third element of syndicated estafa does not obtain. To recall, the misappropriated funds in this case pertain to HDMF. While such funds were undoubtedly solicited from the general public, it bears emphasizing that HDMF was not the corporate vehicle used to perpetrate the fraud. Rather, HDMF was the subject of the fraudulent scheme perpetrated by GA. These facts, taken together, place the present case beyond the scope of PD 1689.
Justice Carpio is of the position that PD 1689 does not require that the perpetrator or the accused corporation/association be the one to solicit funds from the public, so long as the defraudation results in the misappropriation of money or of funds solicited by corporations/associations from the general public. 16 With all due respect, I disagree. The limited scope of PD 1689 is discernable from its "whereas clauses":
WHEREAS, there is an upsurge in the commission of swindling and other forms of frauds in rural banks, cooperatives, "samahang nayon (s)", and farmers' associations or corporations/associations operating on funds solicited from the general public;
WHEREAS, such defraudation or misappropriation of funds contributed by stockholders or members of such rural banks, cooperatives, "samahang nayon(s)", or farmers' associations, or of funds solicited by corporations/associations from the general public, erodes the confidence of the public in the banking and cooperative system, contravenes the public interest, and constitutes economic sabotage that threatens the stability of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least minimized, by imposing capital punishment on certain forms of swindling and other frauds involving rural banks, cooperatives, "samahang nayon(s)", farmers' associations or corporations/associations operating on funds solicited from the general public[.] (Emphasis supplied)
The "whereas clauses" are clear - PD 1689 is intended to cover swindling and other forms of frauds involving corporations or associations operating on funds solicited from the general public. To relax the third element of syndicated estafa in the present case is to adopt a liberal interpretation of PD 1689 to respondents' detriment; this cannot be done without doing violence to the well-established rule on the interpretation of criminal and penal statutes.
The early case of People v. Garcia17 lends guidance:
x x x "Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statute's operation. They must come clearly within both the spirit and the letter of the statute, and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating the statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is sought." x x x18 (Emphasis supplied)
The absence of the third element takes GA's fraudulent scheme outside of the scope of PD 1689. Nevertheless, such absence does not have the effect of absolving respondents herein of criminal liability, as the fraudulent scheme remains punishable under Article 315 of the RPC.
I find that the allegations in the Information, coupled with the evidence offered thus far, establish the existence of probable cause to charge and try respondents for the crime of simple estafa under the RPC, particularly under Article 315(2)(a)19 thereof due to respondents' involvement in the implementation of GA's "Special Other Working Group Membership Program" (SOWG).20
Respondents insist that GA's duty to warrant the veracity of its buyer- borrowers' qualifications had been rendered inexistent by the Memorandum of Agreement dated July 13, 2009 (MOA), owing to the summary judgment rendered by the Regional Trial Court (RTC) of Makati in Civil Case No. 10- 112021 which provides, in part:
The MOA dated [July 13, 2009] entered into between [GA] and defendant HDMF which was duly approved by the Board of Trustees of the latter, without any doubt, effectively superseded, amended, and modified the provisions of the continuing [Funding Commitment Agreements (FCAs)] and [Collection Servicing Agreements] which are inconsistent with its provisions specifically in the following areas of concern:
a. Warranty of the developer on the approval of loan applications of [HDMF] member-borrowers who bought houses and lots from the Xevera Bacolor and Mabalacat projects of [GA] considering that under the MOA, [GA] is limited to loan counseling;
b. Warranty against any misrepresentation of the employees or agents of [GA] in connection with the latter's evaluation and approval of loan accounts due to the fact that under the MOA, [GA] is limited to loan counseling; and
c. Right to unilateral termination of the contracts because under the MOA, the contracts can only be terminated upon mutual consent of both parties.22
Respondents posit that GA could not have made any false representations which would have impelled HDMF to approve the loan applications of its buyer-borrowers, so as to render them liable for simple estafa under Article 315(2)(a) of the RPC.
I disagree. I find, as do the majority, that GA's systematic endorsement of fictitious and unqualified buyer-borrowers serves as sufficient basis to hold the respondents liable for simple estafa - which liability stands regardless of whether GA's warranties under the Funding Commitment Agreements (FCAs) remained in effect.
To recall, the elements of simple estafa under Article 315(2)(a) are: (i) there must be a false pretense or fraudulent representation as to the offender's power, influence, qualifications, property, credit, agency, business or imaginary transactions; (ii) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (iii) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (iv) that, as a result thereof, the offended party suffered damage. 23 In order for simple estafa of this kind to exist, the false pretense or fraudulent representation must be made prior to, or at least simultaneous with, the delivery of the thing subject of the fraud, it being essential that such false statement or representation constitutes the very cause or motive which induces the victim to part with his/her money.24
With respect to the element of false pretense or fraudulent representation, the Court's ruling in Preferred Home Specialties Inc. v. Court of Appeals25 is instructive:
A "representation" is anything which proceeds from the action or conduct of the party charged and which is sufficient to create upon the mind a distinct impression of fact conducive to action. "False" may mean untrue, or designedly untrue, implying an intention to deceive, as where it is applied to the representations of one inducing another to act to its own injury. "Fraudulent" representations are those proceeding from, as characterized by fraud, the purpose of which is to deceive. "False pretense" means any trick or device whereby the property of another is obtained.26
To be sure, there is nothing in Article 315 which requires that the matter falsely represented be the subject of an obligation or warranty on the part of the offender. It is sufficient that the false representation made by the offender had served as the driving force in the victim's defraudation.
On this score, it bears stressing that HDMF agreed to adopt GA's proposed SOWG on the basis of Delfin Lee's representations that a significant number of buyers had expressed interest in purchasing units in its Xevera Projects. In fact, after having secured billions of pesos under the first nine (9) FCAs executed between August 12, 2008 and July 10, 2009, Delfin Lee sought to further secure, as he did secure, additional funding commitment lines through an accelerated loan take-out process, under the guise of a "rapid and notable increase in the number of buyers" for GA's Xevera Projects.
However, as was later admitted by Delfin Lee himself, at least one thousand (1,000) of the buyer-borrowers which GA had endorsed to HDMF were questionable. Worse, Delfin Lee likewise admitted that these questionable accounts were kept current not by the buyer-borrowers on record, but by GA itself.27 In turn, the subsequent audit conducted by HDMF revealed that: (i) only 1.85% of the sampled accounts under the SOWG category were actually occupied by their corresponding buyer-borrowers; (ii) 83.38% of acquired units under the SOWG category were unoccupied; and (iii) 7.69% of accounts under the SOWG category had been closed. These figures account for at least 296 anomalous SOWG accounts out of the 320 accounts HDMF sampled during the audit, which, in turn, constitutes 10% of the total number of SOWG accounts booked by GA.28 What is even more telling is the fact that GA's remittance rate immediately fell from 100% to 0% a month after HDMF suspended loan take-outs in favor of GA's buyers due to its alarming findings. 29
The sheer volume of anomalous SOWG accounts is indicative of willful and fraudulent misrepresentation on the part of GA, for while the endorsement of a handful of fictitious and/or inexistent buyer-borrowers may reasonably result from negligence or even mere oversight, the endorsement such accounts in the hundreds clearly shows the employment of an elaborate scheme to defraud, and assumes the nature and character of fraud and deceit constitutive of simple estafa under Article 315(2)(a):
[F]raud, in its general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. And deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.30 (Emphasis supplied)
To my mind, this elaborate scheme could not have been possible without the complicity of the respondents, given the volume of transactions and amount of money involved in its perpetration. Hence, the respondents should accordingly be charged and made to stand trial.
Moreover, Justice Perlas-Bernabe correctly notes that even if it is assumed, arguendo, that the MOA had the effect of negating GA's warranties under the FCAs anent its buyer-borrowers' qualifications, no less than nine (9) FCAs implementing the SOWG arrangement had nevertheless been executed prior to the execution of the MOA. Accordingly, the offense of simple estafa had already been consummated in respect of these nine (9) FCAs, which account for the staggering amount of Two Billion Nine Hundred Million Pesos (₱2,900,000,000.00) in loan proceeds.
On the basis of the foregoing, I vote that the petitions docketed as G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730 and 230680 be GRANTED IN PART, and that the public prosecutor be directed to amend the Information to reflect the correct charge of simple estafa, under Article 315(2)(a) of the RPC. Let the warrants of arrest against respondents Delfin S. Lee, Dexter L. Lee, Christina Sagun, and Cristina Salagan STAND, and the warrant of arrest against Atty. Alex M. Alvarez be deemed REINSTATED.
I concur with the ponencia insofar as it GRANTS the petition docketed as G.R. No. 209424, and DIRECT the remand of Civil Case No. 10-1120 entitled Globe Asiatique Realty Holdings, Corp. et al. v. The Home Development Mutual Fund or Pag-lbig Fund, et al. to the Regional Trial Court ofMakati City, Branch 58 for further proceedings.
Finally, I concur with the ponencia insofar as it GRANTS the petitions docketed as G.R. Nos. 208744 and 210095, and LIFTS the Writ of Preliminary Injunction dated April 10, 2013 issued by the Regional Trial Court of Pasig City, Branch 167.
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
Footnotes
1 In relation to Article 315 of the RPC.
2 Galvez v. Court of Appeals, 704 Phil. 463, 472(2013) [Per J. Perez, Special Second Division].
3 As quoted in the ponencia, p. 13.
4 Including, among others, Affidavits of Income, Contracts to Sell, promissory notes, Deeds of Assignment and Certificates of Acceptance.
5 Based on the NBI Report dated October 29, 2010, see J. Carpio, Dissenting Opinion, p. 25, citing rollo (G.R. No. 209446), Vol. II, p. 722.
6 Based on the transcript of clarificatory questioning of Ms. Veniza Santos Panem, see J. Carpio, Dissenting Opinion, id. at 23-25, citing rollo, Vol. VI (G.R. No. 209446), pp. 2550-2563.
7 G.R. No. 224371, September 19, 2016 (Unsigned Resolution).
8 Id.
9 See J. Carpio, Dissenting Opinion, pp. 25-26.
10 See J. Leonen, Dissenting Opinion, p. 4.
11 Id. at 5.
12 Id.
13 Id.
14 Supra note 2.
15 Id. at 473-474.
16 See J. Carpio, Dissenting Opinion, p. 27.
17 85 Phil. 651 (1950) [Per J. Tuason, En Banc].
18 Id. at 656.
19 RPC, Article 3 l 5(2)(a) provides:
ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow x x x:
x x x x
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.
20 See ponencia, p. 40.
21 Entitled Globe Asiatique Realty Holdings Corporation and Delfin lee (in his capacity as President of the Corporation) v. Home Development Mutual Fund (HDMF) or Pag-Ibig Fund, its Board a/Trustees and Emma Linda Faria, Officer in Charge, for Specific Performance and Damages.
22 Rollo (G.R. No. 209424), Vol. II, p. 447.
23 People v. Baladjay, G.R. No. 220458, July 26, 2017, p. 7 [Per J. Velasco, Jr., Third Division].
24 See Preferred Home Specialties Inc. v. Court of Appeals, 514 Phil. 574, 597-598 (2005) [Per J. Callejo, Sr., Second Division].
25 Id.
26 Id. at 598-599.
27 Rollo (G.R. No. 205698), Vol. I, p. 334.
28 Figures culled from the results of the HDMF special audit, as narrated by the NBI in its Preliminary Investigation Report dated October 29, 2010 (see rollo [G.R. No. 205698], Vol. I, p. 334).
29 Rollo (G.R. No. 205698), Vol. I, p. 334.
30 lateo v. People, 666 Phil. 260, 273-274 (2011) [Per J. Nachura, Second Division] cited in the ponencia, p. 40; see also Republic v. Mega Pacific eSolutions, Inc., 788 Phil. 160, 196-197 (2016) [Per C.J. Sereno, First Division].
JULY 31, 2018
EN BANC
G.R. No. 205698 - HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, Petitioner, v. CHRISTINA SAGUN, Respondent.
G.R. No. 205780- DEPARTMENT OF JUSTICE, rep. By SEC. LEILA DE LIMA, STATE PROSECUTOR THEODORE M. VILLANUEVA, and PROSECUTOR GENERAL CLARO A. ARELLANO, and THE NATIONAL BUREAU OF INVESTIGATION (NBI), Petitioners, v. CHRISTINA SAGUN, Respondent.
G.R. No. 208744 - DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 209424 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION, DELFIN S. LEE, in his capacity as the President of the corporation, and TESSIE G. WANG, Respondents.
G.R. No. 209446 - PEOPLE OF THE PHILIPPINES, Petitioner, v. ALEX M. ALVAREZ, Respondent.
G.R. No. 209489 - HOME DEVELOPMENT MUTUAL FUND, Petitioner, v. ATTY. ALEX M. ALVAREZ, Respondent.
G.R. No. 209852 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 210095 - DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 210143 - PEOPLE OF THE PHILIPPINES, Petitioner, v. DELFIN S. LEE, Respondent.
G.R. No. 228452 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. DEXTER L. LEE, Respondent.
G.R. No. 228730 - PEOPLE OF THE PHILIPPINES, Petitioner, v. DEXTER L. LEE, Respondent.
G.R. No. 230680 - CRISTINA SALAGAN, Petitioner, v. PEOPLE OF THE PHILIPPINES and HOME DEVELOPMENT MUTUAL FUND (HDMF), Respondents.
DISSENTING OPINION
CARPIO, J.:
x - - - - - - - - - - - - - - - - - - - - - - - x
This case involves the resolution of this issue: Is the taking of some ₱6.6 billion from the PAG-IBIG Fund, through the use of over one thousand fictitious borrowers, applied for by a private corporation through its corporate officers, simple estafa or syndicated estafa? The PAG-IBIG Fund, administered by a government corporation, is sourced from contributions by millions of public and private employees.
The majority holds that this mind-boggling taking of funds is a case of simple estafa. I dissent for obviously this is a case of syndicated estafa. Before this Court are consolidated petitions for review filed under Rule 45 of the Rules of Court. The consolidated cases stemmed from the housing loan accounts taken out from Home Development Mutual Fund (HDMF) by Globe Asiatique Realty Holdings Corporation (Globe Asiatique) for its housing projects in Pampanga.
The Facts
In 2008, Globe Asiatique, represented by its president, Delfin S. Lee, negotiated with HDMF for a Window- I Contract to Sell/Real Estate Mortgage (CTS-REM) with Buyback Guaranty take out mechanism for its Xevera Bacolor Project in Pampanga. Pursuant thereto, Globe Asiatique entered into Funding Commitment Agreements (FCAs) and Memoranda of Agreement (MOA) with HDMF.
On 10 September 2010, then HDMF Officer-in-Charge (OIC) Emma Faria (Faria) wrote a letter to the Director of the National Bureau of Investigation (NBI), requesting assistance in the investigation by HDMF on the housing loan accounts taken out by Globe Asiatique for Xevera and Sameera projects in Pampanga. In her letter, Faria stated that HDMF's own validation of Globe Asiatique's accounts revealed that hundreds of them have been taken out by spurious borrowers while about a thousand more could not be located.
The NBI conducted its own investigation. On 29 October 2010, the NBI forwarded to the Department of Justice (DOJ) a letter recommending that a preliminary investigation be conducted against Delfin S. Lee and others for the crime of syndicated estafa constituting economic sabotage. The DOJ formed a panel of prosecutors to investigate the complaint which was docketed as NPS Docket XVI-INV-lOJ-00319, entitled National Bureau of Investigation (NBI)/Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corp., Delfin S. Lee, et al. (First Criminal Complaint).
On 15 November 2010, Globe Asiatique and Delfin S. Lee filed before the Makati RTC a complaint for Specific Performance and Damages against HDMF, its Board of Trustees and OIC Faria (Makati Civil Case). The Complaint was docketed as Civil Case No. 10-1120, entitled Globe Asiatique Realty Corp., et al. v. The Home Development Mutual Fund or PAG-IBIG Fund, et al. and raffled to Makati RTC Branch 58. The complaint sought to compel HDMF to accept the replacements Globe Asiatique had proposed to take the place of buyers/borrowers who have become delinquents in their payments of their loan amortizations.
Meanwhile, on 10 December 2010, the NBI forwarded to the DOJ another letter recommending the conduct of preliminary investigation against Delfin S. Lee and others for syndicated estafa based on the complaints of HDMF and Globe Asiatique clients Evelyn Niebres, Catherine Bacani, and Ronald San Nicolas. Acting on the NBI recommendation, the DOJ formed a panel of prosecutors to handle the preliminary investigation of the complaint, which was docketed as NPS Docket No. XVI-INV-l0L- 00363, entitled National Bureau of Investigation/Evelyn B. Niebres, et al. v. Globe Asiatique Realty Corp./Delfin S. Lee, et al. (Second Criminal Complaint). On 18 February 2011, the third criminal complaint for syndicated estafa was filed, docketed as NPS Docket No. XVI-INV-11B- 00063, entitled National Bureau of Investigation/Jennifer Gloria, et al. v. Globe Asiatique Realty Corp./Delfin S. Lee, et al. (Third Criminal Complaint). The fourth criminal complaint for syndicated estafa, docketed as NPS Docket No. XVI-INV-llC-00138, entitled National Bureau of Investigation/Maria Fatima Kayonas, et al. v. Globe Asiatique Realty Corp./Delfin S. Lee, et al. (Fourth Criminal Complaint) was filed on 25 March 2011. Delfin S. Lee filed a petition to suspend the proceedings, which the DOJ denied.
Without awaiting the outcome of the pending DOJ cases, Delfin S. Lee filed a Petition for Injunction dated 27 July 2011 before the Pasig RTC to enjoin the DOJ from continuing with the preliminary investigation in the Second Criminal Complaint. The case was docketed as Civil Case No. 73115-PSG and raffled to Branch 167 of the Pasig RTC, presided by Judge Rolando Mislang (Judge Mislang). In his petition, Delfin S. Lee argued that the Makati Civil Case poses a prejudicial question to the determination of the Second Criminal Complaint, and thus prayed for the suspension of the proceedings in the latter case.
In an Order dated 16 August 2011, Judge Mislang of the Pasig RTC granted Delfin S. Lee's application for TRO, and enjoined the DOJ from continuing with the preliminary investigation in the Second Criminal Complaint. In its Order dated 26 August 2011, the Pasig RTC likewise granted Delfin S. Lee's application for TRO to enjoin the DOJ from filing an Information for syndicated estafa in connection with the First Criminal Complaint. Thereafter, in its Order dated 5 September 2011, the Pasig RTC issued a Writ of Preliminary Injunction, restraining the DOJ from filing the Information in the First Criminal Complaint and from proceeding with the preliminary investigation in the Second Criminal Complaint.
In a petition docketed as CA-G.R. SP No. 121594, the DOJ assailed the Pasig RTC 's Order dated 5 September 2011. In its Decision dated 16 April 2012, the Court of Appeals (CA) ruled that no prejudicial question exists and thus annulled the 5 September 2011 Order of the Pasig RTC. On appeal, this Court in its 4 July 2012 Resolution in G.R. No. 201360 affirmed the CA Decision, and thereafter denied Delfin S. Lee's Motion for Reconsideration. The CA Decision in CA-G.R. SP No. 121594 dated 16 April 2012 became final and executory on 2 January 2013.
In September 2011, HDMF filed before the Pasig RTC a Motion to Inhibit and Leave to File Motion in Intervention. The DOJ also filed a Motion to Inhibit. In its Order dated 27 January 2012, the Pasig RTC allowed HDMF to intervene but denied the motions to inhibit.
In the meantime, the DOJ Task Force on Securities and Business Scam issued a Review Resolution dated 10 August 2011, finding probable cause for syndicated estafa (NPS Docket No. XVI-INV-1 OJ-00319) against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez.
In the meantime, the DOJ Task Force on Securities and Business Scam issued a Review Resolution dated 10 August 2011, finding probable cause for syndicated estafa (NPS Docket No. XVI-INV-10J-00319) against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez.
On the Makati Civil Case, the Makati RTC issued a Resolution dated 30 January 2012, granting Delfin S. Lee's Motion for Summary Judgment, ruling that Globe Asiatique was entitled to specific performance and damages, except that the exact amount of damages will have to be determined during the trial proper. In its Resolution dated 11 December 2012, the Makati RTC denied the Motion for Reconsideration filed by HDMF President and Chief Executive Officer Atty. Darlene Marie Berberabe (Atty. Berberabe) and Faria, and ruled that the Summary Judgment declared in Civil Case No. 10-1120 is already final and executory against HDMF. HDMF filed a Petition for Certiorari before the CA, docketed as CA-G.R. SP No. 128262. In its Decision dated 7 October 2013, the CA dismissed HDMF's petition, finding no grave abuse of discretion and ruling that HDMF availed of the wrong remedy to assail the Makati RTC Resolutions and that there was no showing that the petition was filed under the authority of the Office of the Government Corporate Counsel (OGCC).
In the meantime, Delfin S. Lee filed before the Pasig RTC a Supplemental Petition dated 11 June 2012, seeking to enjoin the DOJ from proceeding with the Third and Fourth Criminal Complaints, citing the 30 January 2012 Resolution of the Makati RTC in the Makati Civil Case. On 21 March 2013, the Pasig RTC issued a TRO against the DOJ, enjoining the latter from proceeding with the preliminary investigation of the Second, Third, and Fourth Criminal Complaints. Thereafter, in its Order dated 10 April 2013, the Pasig RTC issued the Writ of Preliminary Injunction, enjoining the DOJ from continuing with the preliminary investigation of the Second, Third, and Fourth Criminal Complaints.
On 7 June 2013, the DOJ filed a Motion for Special Extension of Time to File Petition for Certiorari before the CA (CA-G.R. SP No. 130404). Thereafter, the DOJ filed on 18 June 2013 the Petition for Certiorari, assailing the Pasig RTC Order dated 10 April 2013. Unfortunately, the petition was inadvertently filed without a docket number, resulting in the petition being given a new docket number (CA-G.R. SP No. 130409) and raffled to another ponente and division.
On 8 July 2013, the CA issued a Resolution in CA-G.R. SP No. 130404, denying the DOJ's Motion for Special Extension of Time to File Petition for Certiorari, stating that the requested period has lapsed without the petition having been filed. DOJ filed a Manifestation with Motion to Admit Petition for Certiorari dated 16 July 2013, which sought reconsideration of the CA's Resolution dated 8 July 2013, and prayed for the admission of the attached petition. In the Resolution dated 14 August 2013, the CA denied the motion for being filed out of time.
As regards CA-G.R. SP No. 130409, the CA, in its 26 June 2013 Resolution, dismissed the Petition for Certiorari filed by the DOJ on 18 June 2013 for being filed out of time. The CA denied the DOJ's Motion for Reconsideration in the Resolution dated 11 November 2013.
In the meantime, on 30 April 2012, the criminal information for syndicated estafa against Delfin S. Lee, Dexter Lee, Atty. Alex Alvarez, Christina Sagun, and Cristina Salagan was raffled to Pampanga RTC, Branch 42, presided by Judge Maria Amifaith S. Fider-Reyes. The case was docketed as Criminal Case No. 18480 entitled "People of the Philippines v. Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez."
On 22 May 2012, the Pampanga RTC issued a Resolution, finding probable cause for the crime of estafa (Article 315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, and issued a warrant of arrest against them with no bail recommended.
In the Resolution dated 22 August 2012, the Pampanga RTC denied the: (1) Motion to Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending the Resolution of the Motion filed by Delfin S. Lee and Dexter L. Lee; and (2) Motion to Quash Warrant of Arrest filed by Cristina Salagan.
On 29 January 2014, the Pampanga RTC issued a Resolution denying Christina Salagan's Second Motion to Quash Information with Prayer to Re-Determine Probable Cause Based on Supervening Event.
The Cases
The Court consolidated these cases which involve common questions of law and fact, and the reliefs sought are intertwined.
G.R. No. 205698
(Home Development Mutual Fund (HDMF) PAG-IBIG Fund, v. Christina Sagun)
This petition for review on certiorari assails the 5 October 2012 Decision and the 11 February 2013 Resolution of the CA in CA-G.R. SP No. 1213 46. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, the Petition for Certiorari and Prohibition is hereby PARTIALLY GRANTED. Consequently, the subject Review Resolution dated August 10, 2011 issued by respondent DOJ is SET ASIDE and DISMISSED as against petitioner Christina Sagun.
SO ORDERED.1
The 10 August 2011 DOJ Review Resolution found probable cause against Delfin Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez for the crime of syndicated estafa in the First Criminal Complaint and recommended the filing of the corresponding information against them. The dispositive portion of the DOJ Review Resolution reads:
WHEREFORE, premises considered, it is most respectfully recommended that this resolution, finding probable cause against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez for the crime of syndicated estafa, as defined and penalized under paragraph 2(a) of Article 315 of the Revised Penal Code, in relation to Section 1 of Presidential Decree No. 1689, be APPROVED and that the corresponding information against them be filed in court WITH NO BAIL RECOMMENDED. It is likewise respectfully recommended that the complaint against Ramon P. Palma Gil, Lerma Vitug, Tintin Fonclara, Geraldine Fonclara, Revelyn Reyes, Rod Macaspac, Marvin Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan, Nannet Haguiling and John Tungol, be DISMISSED for lack or insufficiency of evidence and that this Resolution be referred to the Office of the Ombudsman so that the appropriate investigation be conducted against the former and present officers of HDMF (Pag-Ibig Fund).
Petitioner HDMF's Motion for Reconsideration was denied by the CA in its Resolution dated 11 February 2013.
G.R. No. 205780
(Department of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of Investigation v. Christina Sagun)
G.R. No. 208744
(Department of Justice v. Delfin S. Lee)
This petition for review on certiorari assails the CA Resolutions dated 8 July 20132 and 14 August 20133 in CA-G.R. SP No. 130404.
On 7 June 2013, the DOJ filed with the CA a Motion for Special Extension of Time to File Petition for Certiorari, praying for an additional period of ten days from 9 June 2013, or until 19 June 2013 to file the intended petition. On 18 June 2013, the DOJ filed the petition, assailing the 10 April 2013 Order of the Pasig RTC (Branch 167) in Civil Case No. 73115 which granted Delfin S. Lee's application for the issuance of a writ of preliminary injunction. The assailed Order enjoined the DOJ from continuing with the preliminary investigation of the Second, Third and Fourth Criminal Complaints, thus:
WHEREFORE, let a writ of preliminary injunction issue enjoining Department of Justice and any other person or panel under its supervision from continuing with the preliminary investigation of NPS Docket No. XVI-INV-1 OL-00363, the Second Criminal Complaint, NPS Docket No. XVI-INV-l lB-00063, the Third Criminal Complaint, and NPS Docket No. XVI-INV-l lC-00138, the Fourth Criminal Complaint.
Petitioner is directed to post a bond in the amount of Php2,000,000.00.4
Unfortunately, the petition filed on 18 June 2013 was without a docket number, which resulted in the petition being given another docket number, namely CA-G.R. SP No. 130409 (instead of CA-G.R. SP No. 130404), and the same was raffled to another ponente and division.
On 8 July 2013, the CA issued a Resolution in CA-G.R. SP No. 130404, denying the DOJ's Motion for Extension of Time to File Petition for Certiorari, stating that the requested period has lapsed without the petition having been filed. The DOJ filed a Manifestation with Motion to Admit Petition for Certiorari dated 16 July 2013, which sought reconsideration of the CA's Resolution dated 8 July 2013, and prayed for the admission of the attached petition. In the Resolution dated 14 August 2013, the CA denied the motion for being filed out of time. The CA did not consider the petition as filed on 18 June 2013 since the inexcusable inadvertence of the DOJ in filing the petition without a docket number resulted in the petition being considered as a freshly filed petition and given the latest docket number, namely, CA-G.R. SP No. 130409. Furthermore, the CA found no compelling reason to reconsider the 8 July 2013 Resolution denying the DOJ's Motion for Extension.
G.R. No. 209424
(Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his capacity as the President of the Corporation, and Tessie G. Wang)
This petition for review on certiorari assails the CA Decision dated 7 October 2013 in CA-G.R. SP No. 128262,5 which upheld the Resolutions dated 30 January 2012 and 11 December 2012 of the Makati RTC in Civil Case No. 10-1120.6 The dispositive portion of the CA Decision reads:
WHEREFORE, there being no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent in rendering the assailed Resolution dated January 30, 2012 containing the Summary Judgment and the Resolution dated December 11, 2012 denying the HDMF, Faria and Atty. Berberabe's Motion for Reconsideration, the instant petition is hereby DISMISSED.
SO ORDERED.7
The Makati RTC Resolution dated 3 0 January 2012 granted the Motion for Summary Judgment filed by Globe Asiatique and Delfin S. Lee.
HDMF and Faria filed a Motion for Reconsideration through private counsel, the Yorac Arroyo Chua Caedo & Coronel Law Firm. However, the Makati RTC held that the Motion for Reconsideration filed by the private counsel in behalf of HDMF is unauthorized. Atty. Berberabe likewise filed a Motion for Reconsideration. In a Resolution dated 11 December 2012, the Makati RTC denied the motions for reconsiderations filed by Faria and Atty. Berberabe for lack of merit. The Makati RTC further held that the 30 January 2012 Resolution containing the Summary Judgment has become final, executory, and immutable as to HDMF.
G.R. No. 209446
(People of the Philippines v. Alex M Alvarez)
This petition for review on certiorari assails the CA Decision dated 3 October 2013 in CA-G.R. SP No. 127690, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing premises, the Petition for Certiorari and the Supplemental Petition are PARTIALLY GRANTED and the assailed Resolutions dated May 22, 2012 and August 22, 2012 of the Regional Trial Court, Branch 42 of San Fernando City, Pampanga in so far as petitioner ALEX M. ALVAREZ is concerned are hereby annulled and set aside. Accordingly, the warrant of arrest issued against him is hereby LIFTED, QUASHED/RECALLED.
Meantime, since the evidence do not support the finding of probable cause against petitioner ALEX M. ALVAREZ, public respondent court is hereby enjoined from proceeding with Criminal Case No. 18480 as against said petitioner only.
SO ORDERED.8
The 22 May 2012 Resolution of the Pampanga RTC found probable cause for the crime of estafa (Article 315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, and issued a warrant of arrest against them with no bail recommended.
In the Resolution dated 22 August 2012, the Pampanga RTC denied the: (1) Motion to Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending the Resolution of the Motion filed by Delfin S. Lee and Dexter L. Lee; and (2) Motion to Quash Warrant of Arrest filed by Cristina Salagan.
G.R. No. 209489
(Home Development Mutual Fund v. Atty. Alex M Alvarez)
This petition for review on certiorari filed by HDMF likewise assails the CA Decision dated 3 October 2013 in CA-G.R. SP No. 127690.
G.R. No. 209852
(Home Development Mutual Fund (HDMF) v. Delfin S. Lee)
This petition for review on certiorari assails the CA Decision dated 7 November 2013 in CA-G.R. SP No. 127553,9 which partially granted respondent Delfin S. Lee's Petition for Certiorari assailing the Resolutions dated 22 May 2012 and 22 August 2012 of the Pampanga RTC (Branch 42) in Criminal Case No. 18480. 10 The dispositive portion of the CA Decision reads:
WHEREFORE, in view of the foregoing, the instant petition is hereby PARTIALLY GRANTED. The assailed Resolutions dated May 22, 2012 and August 22, 2012 are hereby ANNULLED and SET ASIDE for the issuance thereof was attended with grave abuse of discretion on the part of public respondent Hon. Ma. Amifaith S. Fider-Reyes, in her capacity as the Presiding Judge of the San Fernando, Pampanga RTC - Branch 42. Consequently, the Warrant of Arrest issued against petitioner Delfin S. Lee is hereby QUASHED, RECALLED AND LIFTED. Afore-named public respondent judge is directed to CEASE and DESIST from further proceeding with Criminal Case No. 18480 insofar as petitioner Delfin S. Lee is concerned.
Furthermore, all government agencies tasked in the enforcement of the said warrant of arrest including but not limited to the Philippine National Police (PNP), the National Bureau of Investigation (NBI) and the Bureau of Immigration (BI) are immediately ENJOINED from implementing the same.
SO ORDERED.11
G.R. No. 210095
(Department of Justice v. Delfin S. Lee)
This petition for review on certiorari assails the CA Resolutions dated 26 June 2013 and 11 November 2013 in CA-G.R. SP No. 130409. The 26 June 2013 Resolution dismissed the Petition for Certiorari filed by the DOJ on 18 June 2013 for being filed out of time. The CA denied the DOJ's Motion for Reconsideration in the Resolution dated 11 November 2013.
The Petition for Certiorari was filed by the DOJ before the CA to nullify the Order dated 10 April 2013 of Judge Mislang of the Pasig RTC (Branch 167) in Civil Case No. 73115, enjoining the DOJ from continuing with the preliminary investigation of the second, third, and fourth criminal complaints against Delfin S. Lee.
G.R. No. 210143
(People of the Philippines v. Delfin S. Lee)
This petition for review on certiorari assails the CA Decision dated 7 November 2013 in CA-G.R. SP No. 127553, 12 which partially granted respondent Delfin S. Lee's Petition for Certiorari, assailing the Resolutions dated 22 May 2012 and 22 August 2012 of the Pampanga RTC (Branch 42) in Criminal Case No. 18480. This case is related to the case entitled Home Development Mutual Fund (HDMF) v. Delfin S. Lee (G.R. No. 209852) which likewise seeks to reverse and set aside the CA Decision dated 7 November 2013 in CA-G.R. SP No. 127553.
G.R. No. 228452
(Home Development Mutual Fund (HDMF) v. Dexter L. Lee)
This petition for review on certiorari assails the CA Decision dated 16 November 2016 in CA-G.R. SP No. 127554,13 partially granting respondent Dexter L. Lee's Petition for Certiorari assailing the Resolutions dated 22 May 2012 and 22 August 2012 of the Pampanga RTC (Branch 42) in Criminal Case No. 18480. 14 The dispositive portion of the CA Decisionreads:
ACCORDINGLY, on the foregoing reasons, the petition is PARTIALLY GRANTED. The assailed Resolutions dated May 22, 2012 and August 22, 2012 of Branch 42 of Regional Trial Court of Pampanga City are ANNULLED and SET ASIDE. Thus, the Warrant of Arrest issued against petitioner Dexter L. Lee is hereby QUASHED, RECALLED and LIFTED. Furthermore, the Regional Trial Court, Branch 42 of San Fernando Pampanga is directed to CEASE and DESIST from further proceeding with Criminal Case No. 18480 insofar as petitioner Dexter L. Lee is concerned.
Moreover, all government agencies tasked in the enforcement of the Warrant of Arrest including but not limited to the Philippine National Police, the National Bureau of Investigation and the Bureau of Immigration are immediately ENJOINED from implementing the said Warrant.
SO ORDERED.15
G.R. No. 228730
(People of the Philippines v. Dexter L. Lee)
This petition for review on certiorari likewise assails the CA Decision dated 16 November 2016 in CA-G.R. SP No. 127554, partially granting respondent Dexter L. Lee's Petition for Certiorari assailing the Resolutions dated 22 May 2012 and 22 August 2012 of the Pampanga RTC (Branch 42) in Criminal Case No. 18480. This case is related to the immediately preceding case entitled Home Development Mutual Fund (HDMF) v. Dexter L. Lee (G.R. No. 228452) which also seeks to reverse and set aside the CA Decision dated 16 November 2016 in CA-G.R. SP No. 127554.
G.R. No. 230680
(Cristina Salagan v. People of the Philippines and Home Development Mutual Fund ([HDMF])
This petition for review on certiorari assails the CA Decision dated 18 March 2016 in CA-G.R. SP No. 134573, affirming the Resolutions dated 22 May 2012 and 29 January 2014 of the Pampanga RTC (Branch 42) in Criminal Case No. 18480 insofar as accused Salagan is concerned. The dispositive portion of the CA Decision reads:
WHEREFORE, in view of the foregoing, the Petition for Certiorari is DISMISSED. Accordingly, the Resolution dated May 22, 2012 and Resolution dated January 29, 2014 of the San Fernando, Pampanga RTC, Branch 42 are hereby AFFIRMED insofar as AccusedCristina Salagan is concerned.
SO ORDERED.16
For clarity, the cases are discussed jointly in accordance with the resolutions or orders being ultimately assailed, thus:
I. DOJ Review Resolution dated 10 August 2011
1. G.R. No. 205698 - Home Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2. G.R. No. 205780 - Department of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of Investigation v. Christina Sagun
II. Pampanga RTC Resolutions dated 22 May 2012,
22 August 2012, and 29 January 2014
1. G.R. No. 209446 - People of the Philippines v. Alex M Alvarez
2. G.R. No. 209489 - Home Development Mutual Fund v. Atty. Alex M Alvarez
3. G.R. No. 209852 - Home Development Mutual Fund (HDMF) v. Delfin S. Lee
4. G.R. No. 210143 - People of the Philippines v. Delfin S. Lee
5. G.R. No. 228452 -Home Development Mutual Fund (HDMF) v. Dexter L. Lee
6. G.R. No. 228730 - People of the Philippines v. Dexter L. Lee
7. G.R. No. 230680 - Cristina Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
III. Pasig RTC Order dated 10 April 2013
1. G.R. No. 208744 - Department of Justice v. Delfin S. Lee
2. G.R. No. 210095 - Department of Justice v. Delfin S. Lee
IV. Makati RTC Resolutions dated 30 January 2012 and 11 December 2012
1. G.R. No. 209424 - Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his capacity as the President of the corporation, and Tessie G. Wang
The Issues
I. Whether the CA erred in setting aside the DOJ Review Resolution dated 10 August 2011 as against Christina Sagun; (G.R. Nos. 205698 and 205780)
II. A. Whether the CA erred in finding no probable cause for syndicated estafa and for the issuance of arrest warrants against Delfin S. Lee, Dexter L. Lee, and Atty. Alex M. Alvarez; (G.R. Nos. 209446, 209489, 209852, 210143, 228452, and 228730)
B. Whether the CA (CA-G.R. SP No. 134573) erred in upholding the validity of the information for syndicated estafa as against Cristina Salagan and the issuance of the warrant of arrest against her. (G.R. No. 230680)
III. A. Whether the CA erred in dismissing the Petition for Certiorari, assailing the Pasig RTC Order in Civil Case No. 73115, for being filed out of time; and
B. Whether the Pasig RTC erred in enjoining the DOJ from continuing with the preliminary investigation of the second, third and fourth criminal complaints; (G.R. Nos. 208744 and 210095)
IV. A. Whether the CA erred in dismissing the Petition for Certiorari for being the wrong remedy to assail the Summary Judgment; and
B. Whether the Makati RTC erred in issuing the Summary Judgment in Civil Case No. 10-1120. (G.R. No. 209424)
I. 1. G.R. No. 205698 - Home Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2. G.R. No. 205780 - Department of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of Investigation v. Christina Sagun
G.R. Nos. 205698 and 205780 both question the propriety of the CA's ruling on Sagun's petition. The petition before the CA questioned the Review Resolution, and not the issuance of the Information and the trial court's subsequent finding of probable cause. The issues before this Court in these two cases may be limited to the following: (1) whether Christina Sagun followed proper procedure, and (2) whether the CA was correct in proceeding to rule on the validity of the Information and of the issuance of the warrants of arrest.
I rule for petitioners HDMF and DOJ on both issues. The ponencia did not address the first issue. There was no mention of Sagun's direct resort to the CA after the release of the Review Resolution. The ponencia immediately ruled on the second issue and concluded that there was noprobable cause for the filing of the Information for syndicated estafa and for the issuance of warrants of arrest against respondents Delfin S. Lee, Dexter Lee, Christina Sagun, Atty. Alex Alvarez, and Cristina Salagan.
Christina Sagun failed to exhaust administrative remedies
Aggrieved parties may appeal from resolutions of prosecutors by filing a verified petition for review before the Secretary of Justice. The pertinent portions of the rule governing appeals from resolutions of prosecutors in the National Prosecution Service, otherwise known as the 2000 NPS Rule on Appeal, 17 provide:
SECTION 1. Scope. - This Rule shall apply to appeals from resolutions of the Chief State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutors in cases subject of preliminary investigation/ reinvestigation.
SECTION 2. Where to appeal. An appeal may be brought to the Secretary of Justice within the period and in the manner herein provided.
SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed.
SECTION 4. How appeal taken. An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution.
The exception to the general rule will apply only when there is a clear showing of grave abuse of discretion by the public prosecutor amounting to lack or excess of jurisdiction. Absent such showing, the courts do not have the power to substitute their judgment for that of the Secretary of Justice.
In the DOJ's Review Resolution, Christina Sagun's defense is summarized as follows:
Respondent Christina Sagun, for her part, admits that she is the former head of the Documentation Department of GA since 2007. She asserts that the evidence against her in the above-entitled complaint is insufficient inasmuch as the complaint failed to specifically indicate her participation in the alleged crime. She stresses that the enumeration of her specific participation is an essential requirement of due process and is necessary for her to effectively prepare her defense and respond to the charges made against her. She believes that her inclusion in the instant case was in relation to the alleged second buyers of a property who availed of the loan privileges under the Window-1 - CTS-REM with buyback guaranty takeout mechanism granted by the HDMF to GA, namely: Girlie Santos Espanillo, Lerma Cariaga Villaflores, Emily Pagdato Bandillo, Jennifer Fernando and Marissa Quizon.
She also emphasizes that the function of the Documentation Department in relation to Window-1 - CTS-REM with buyback guaranty takeout mechanism of HDMF is ministerial in nature such as receiving, collating and checking loan documents if they are complete or not and verifying from Pag-IBIG if buyers/borrowers of GA are Pag-IBIG members with updated contribution and if they are qualified for a housing loan. In short, her office does not exercise discretion but merely perfunctory and strictly ministerial power. She maintains that she had not participated in any transactions with private complainants Evelyn Niebres, Catherine Bacani and Ronald San Nicolas. Neither had she made any false statement nor representation to the HDMF. 18
The DOJ Review Resolution also stated that Christina Sagun prepared the developer's affidavits that Atty. Alex Alvarez notarized. 19
The same DOJ Review Resolution set aside Christina Sagun's defense as follows:
By the same token, we hereby thrust aside the defenses raised by Christina Sagun x x x since, as shown by the Records, they are in the nature of denial which is "an intrinsically weak defense and which must be buttressed with strong evidence of non-culpability to merit credibility." Besides, it was clearly established by the evidence that Christina Sagun, being the head of the Documentation Department, is responsible for (a) collating and checking if the documents submitted by the borrowers/buyers, through GA's Marketing Department, are complete and duly accomplished, and (b) determine and verify from Pag-IBIG, through the submission of Membership Status Verification, whether or not said borrowers/buyers are indeed Pag-IBIG members, or with updated contributions, or [have] no existing housing loans, and thus are qualified to apply for housing loans. x x x. Verily, by the nature of their functions, Christina Sagun x x x could have prevented the commission of the herein fraud if only they exercised their functions diligently and in a prudent manner. But they failed and in fact they participated in the fraudulent scheme. x x x.
In the words of the Court, the rationale for making such officers responsible for the offense is that, "they are vested with the authority and responsibility to devise means necessary to ensure compliance with the law and, if they fail to do so, are held criminally accountable; thus, they have a responsible share in the violations of the law. And this principle applies "[W]hether [sic] or not the crime requires the consciousness of wrongdoing. It applies to those corporate agents who themselves commit the crime and to those, who, by virtue of their managerial positions orother similar relation to the corporation, could be deemed responsible for its commission, if by virtue of their relationship to the corporation, they had the power to prevent the act. Moreover, all parties active in promoting a crime, whether agents or not, are principals. Whether such officers or employees are benefited by their delictual acts is not a touchstone of their criminal liability. Benefit is not an operative act."
x x x x
Record also shows that during the Board Meeting held on June 20, 2008 wherein the piloting of the OWG membership program in GA's Xevera Project was discussed, then CEO Atty. Romero Quimbo admitted the difficulty of monitoring the sources of income of this group because many of them do not declare their actual earnings such that a credit investigation will be conducted to verify the authenticity of their income. However, during the actual implementation of the program, the conduct of such credit investigation was delegated to GA. In fact, the Agreements subsequently entered into between HDMF and GA have practically given the latter blanket authority in determining membership and housing loan eligibility and capacity to pay of its buyers. It was also given the authority to evaluate, pre-process and approve housing loan applications. The only control mechanism put in place by HDMF being the post take-out audit or validation within thirty (30) days after loan take-out. However, the Special Audit Report dated July 26, 2010 (Annex "Q" of the Complaint) clearly established that there was non-validation or delayed post take-out on the part of HDMF San Fernando, Pampanga Branch, thus, exposing the Fund to probable loss of some financial investments.20
The prerequisite for Sagun's resort to the CA is a clear showing of grave abuse of discretion by the public prosecutors. Under the present circumstances, however, Sagun failed to show that the investigating prosecutors abused their discretion, much less gravely abused their discretion. Sagun, in contrast to her co-respondents in LS. No. XVIINV-10J-00319, immediately resorted to judicial review before the CA. Delfin S. Lee, Dexter Lee, Cristina Salagan, and Atty. Alex Alvarez all filed appeals before the Secretary of Justice. Unlike Sagun, and despite her protestations about the utterances pre-judging the case made by the Secretary of Justice, that "time was of the essence," and that there was "no plain, speedy and adequate remedy in the ordinary course of law," her co-respondents saw that it was procedurally proper to have the Secretary of Justice reexamine the Review Resolution.
Sagun employed the wrong remedy in assailing the investigating prosecutor's Review Resolution, and Sagun never filed an appeal before the Secretary of Justice. Sagun was never able to validly question the Review Resolution. Thus, both the findings and conclusion in the Review Resolution, as well as the consequent filing of the Information against Sagun, stand. The CA erred in considering Sagun's petition and ruling in her favor. Sagun's immediate filing of a petition before the CA is a procedural shortcut that merits a dismissal.
The CA erred in proceeding to rule on the validity of the Information and of the issuance of the warrant of arrest
The CA wrongfully asserted that when it reviews the DOJ's determination of probable cause, it makes a judicial determination of probable cause which binds the trial court.
Petitioners have done right in relying on Alcaraz v. Gonzalez: 21
It bears stressing that in the determination of probable cause during the preliminary investigation, the executive branch of government has full discretionary authority. Thus, the decision whether or not to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the executive branch.
The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor. Thus, while the CA may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction.
It bears stressing that the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution Service Rules on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no more remedy of appeal to file a motion for reconsideration of the said resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law.
Reyes v. Pearl bank Securities, Inc. 22 defines probable cause in the following manner, and further explains why the courts generally do not review the findings made by the Secretary of Justice:
Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. What is determined is whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the accused is probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.
These findings of probable cause fall within the jurisdiction of the prosecutor or fiscal in the exercise of executive power, which the courts do not interfere with unless there is grave abuse of discretion. The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party. Thus, the decision whether to dismiss a complaint or not is dependent upon the sound discretion of the prosecuting fiscal. He may dismiss the complaint forthwith, if he finds the charge insufficient in form or substance or without any ground. Or he may proceed with the investigation if the complaint in his view is sufficient and in proper form. To emphasize, the determination of probable cause for the filing of information in court is an executive function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of the case. Ultimately, whether or not a complaint will be dismissed is dependent on the sound discretion of the Secretary of Justice. And unless made with grave abuse of discretion, findings of the Secretary of Justice are not subject to review.
For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justice's findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion.
The reasons put forward by the CA to justify its substitution of the Pampanga RTC's determination of probable cause do not amount to grave abuse of discretion. The Pampanga RTC's determination of probable cause, although in accord with the findings of the DOJ, did not necessarily rely on the DOJ's resolution alone. Hence, in the absence of grave abuse of discretion, there is no reason to disturb the Pampanga RTC's determination of probable cause.
II. 1. G.R. No. 209446 - People of the Philippines v. Alex M Alvarez
2. G.R. No. 209489 - Home Development Mutual Fund v. Atty. Alex M Alvarez
3. G.R. No. 209852 - Home Development Mutual Fund (HDMF) v. Delfin S. Lee
4. G.R. No. 210143 - People of the Philippines v. Delfin S. Lee
5. G.R. No. 228452 - Home Development Mutual Fund (HDMF) v. Dexter L. Lee
6. G.R. No. 228730 - People of the Philippines v. Dexter L. Lee
7. G.R. No. 230680 - Cristina Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
Delfin S. Lee and Dexter Lee failed to follow proper procedure
Delfin S. Lee and Dexter Lee's contumacious attitude to our rules of procedure is demonstrated by the following:
(1) failing to file a motion for reconsideration of the 22 May 2012 resolution of the San Fernando RTC prior to filing a petition for certiorari before the CA;
(2) filing a petition for certiorari before the CA without waiting for the decision of the San Fernando RTC on his motions for reconsideration of the 22 August 2012 resolution;
(3) failing to file within the reglementary period a petition for certiorari to assail the 22 May 2012 resolution of the San Fernando RTC; and
(4) repeated instances of forum-shopping.
On 22 May 2012, the San Fernando RTC issued a Resolution which found probable cause to issue warrants of arrest against Delfin S. Lee and Dexter Lee, among others. On 23 May 2012, Delfin S. Lee and Dexter Lee filed a "Motion to Recall/Quash Warrant of Arrest and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending Resolution of this Motion." This Motion to Quash raised the following grounds: lack of jurisdiction of the San Fernando RTC due to non-payment of filing fees; judicial interference of the San Fernando RTC with the civil case filed before the Makati RTC; and lack of probable cause for the crime of syndicated estafa.
Delfin S. Lee and Dexter Lee filed another Motion to Quash dated 3 June 2012. This second Motion to Quash raised the following grounds: the facts charged in the Information do not constitute an offense; there is no syndicated estafa because the facts stated in the Information do not state conspiracy; and judicial interference of the San Fernando RTC with the civil case filed before the Makati RTC.
The San Fernando RTC denied Delfin S. Lee and Dexter Lee's Motion in a Resolution dated 22 August 2012. Delfin S. Lee and Dexter Lee filed two Motions for Reconsideration of the 22 August 2012 Resolution: the first on 8 October 2012, and the second on 13 October 2012. Delfin S. Lee and Dexter Lee then separately filed a special civil action for certiorari before the CA (CA-G.R. SP No. 127553 for Delfin S. Lee and CA-G.R. SP No. 127554 for Dexter Lee) without waiting for any resolution from the San Fernando RTC. The CA, in its 7 November 2013 Decision in CA-G.R. SP No. 127553, even stated this deviation from procedure:
On 26 November 2012, without waiting for the resolution of the above-mentioned Motion, petitioner Lee filed a Petition for Certiorari (With Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction) before this Court directed against the Resolutions dated May 22, 2012 and August 22, 2012 issued by public respondent x x x.
As for Dexter Lee, the CA stated in its 16 November 2016 Decision:
Pending the resolution of the motion before the RTC of Pampanga, petitioner filed a Petition for Certiorari with prayer of a TRO and/or Writ of Preliminary Injunction before this Court assailing the May 22, 2012 and August 22, 2012 Resolutions of RTC Pampanga.
It is hornbook doctrine that a motion for reconsideration must first be filed with the lower court before resorting to the extraordinary writ of certiorari. A motion for reconsideration gives the lower court an opportunity to correct the errors imputed to it. Moreover, the special civil action for certiorari will not lie unless the aggrieved party has no other plain, speedy and adequate remedy in the course of law. In the present case, Delfin S. Lee arrogated to himself the determination of whether the filing of a motion for reconsideration is necessary. However, Delfin S. Lee failed to show any compelling reason for his non-filing of a motion for reconsideration and his immediate recourse to a special civil action for certiorari before the CA.
Assuming arguendo that a petition for certiorari was an available remedy to Delfin S. Lee, he was unable to file the petition within the reglementary period. Delfin S. Lee received the 22 May 2012 Resolution on 23 May 2012. Pursuant to Section 4 of Rule 65, he had 60 days, or until 22 July 2012, to file a petition. Delfin S. Lee, however, filed his petition before the CA only on 26 November 2012, or 127 days after the lapse of the 60-day deadline. No reason was given for the inordinate delay.
In similar manner, Dexter Lee received the 22 May 2012 Resolution on 23 May 2012. Pursuant to Section 4 of Rule 65, he had 60 days, or until 22 July 2012, to file a petition. Dexter Lee, however, filed his petition before the CA only on 23 November 2012, or 124 days after the lapse of the 60-day deadline. Dexter Lee also gave no reason for the inordinate delay.
With their immediate, yet separate, resort to a special civil action for certiorari, Delfin S. Lee and Dexter Lee have asked, successively and simultaneously, for judicial relief in different courts, particularly the San Fernando RTC and the CA, with the same end in mind: the dismissal of the syndicated estafa case filed against them.
Atty. Alex Alvarez engaged in forum-shopping
Among all respondents, it is Atty. Alex Alvarez who was most brazen in flouting our rules against forum-shopping. Consider the following:
1. Atty. Alvarez filed a Petition for Review before the Secretary of Justice on 3 October 2011 to assail the DOJ's Review Resolution dated 10 August 2011.
2. While the Petition for Review before the Secretary of Justice was pending, Atty. Alvarez filed a Petition (With Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction) before the Manila RTC.
3. Atty. Alvarez withdrew the Petition for Review before the Secretary of Justice only on 14 November 2011. The Secretary of Justice has yet to rule upon his withdrawal.
4. On 15 November 2011, Atty. Alvarez filed a petition before the CA docketed as CA-G.R. SP No. 122076. He prayed that the DOJ cease and desist from filing the Information in NPS Docket No. XVI-INV-l0J-00319 and that he be excluded from the Information that may be filed in the case.
5. On 23 April 2012, Atty. Alvarez filed a Notice of Withdrawal of Petition in CA-G.R. SP No. 122076.
6. Still on 23 April 2012, Atty. Alvarez filed a Petition for Injunction and Prohibition (With Application for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction) before the Caloocan City RTC.
7. Atty. Alvarez filed an undated second petition before the CA, docketed as CA-G.R. SP No. 127690. He prayed that the Pampanga RTC cease from conducting further proceedings and that the warrant of arrest issued against him be lifted and suspended.
Throughout his numerous filings, Atty. Alvarez has sought only one end: the dismissal of the criminal case filed against him. Atty. Alvarez likewise submitted inaccurate certifications on non-forum shopping in CA-G.R. SP No. 122076, CA-G.R. SP No. 127690, and before the Caloocan City RTC.
Forum-shopping is an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.23 The acts of Delfin S. Lee, Dexter Lee, and Atty. Alex Alvarez that were enumerated in the preceding paragraphs satisfy all these conditions.
The CA exceeded its certiorari jurisdiction
The CA quashed, recalled, and lifted the warrants of arrest against Delfin S. Lee, Dexter Lee, and Atty. Alex Alvarez. In doing so, the CA reviewed and weighed the evidence submitted before the trial court and tried the facts presented before it. It would do well for the CA to recall that its certiorari jurisdiction is limited to errors of jurisdiction and not errors of judgment. As we stated in Leviste v. Alameda:24
In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions and issues beyond its competence, such as an error of judgment. The court's duty in the pertinent case is confined to determining whether the executive and judicial determination of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.
It is premature for the CA to rule on the merits of the case prior to the trial on the merits.
Atty. Alex Alvarez's indispensable participation in the crime of syndicated estafa
To emphasize the extent of Atty. Alvarez's participation in this scheme, we quote from the transcript of the clarificatory questioning of Veniza Santos Panem, an employee of Globe Asiatique:
| Prosecutor Lao
Veniza Santos Panem |
x x x Kilala mo ba si Atty. Alvarez?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Sino si Atty. Alvarez?
Siya po ang nagnonotaryo ng mga dokumento sa Globe Asiatique. |
| Prosecutor Lao
Veniza Santos Panem |
San sya nag-o-opisina?
Sa Globe Asiatique po. |
| Prosecutor Lao
Veniza Santos Panem |
Head office ba?
Head office po. |
| Prosecutor Lao |
So siya yung notary public.
Regular employee? Lagi mo ba syang nakikita don? Ano sa pagkakaalam mo? |
| Veniza Santos Panem |
Lagi ko po syang nakikita doon. |
| Prosecutor Lao
Veniza Santos Panem |
So regular employee siya ng Globe Asiatique?
Hindi ko po sure pero lagi ko siyang nakikita. |
| Prosecutor Lao |
Doon mo siya nakikita sa Globe Asiatique.
Doon sya nag-o-opisina? |
| Veniza Santos Panem |
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Anong year?
Hindi ko po sigurado yung year. |
| Prosecutor Lao |
Sa loob ng employment mo sa Globe Asiatique, sinong nauna sa inyo doon bilang empleyado ng Globe Asiatique? |
| Veniza Santos Panem |
Ako po. |
| Prosecutor Lao |
Ikaw. So gaano katagal? Mga one year after? Two years after or bago pumasok si Atty. Alvarez? |
| Veniza Santos Panem |
Hindi ko po sure kung 2007 or 2008 po siya. |
| Prosecutor Lao
Veniza Santos Panem |
Sabi mo siya yung notaryo?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Saan siya nag-o-office?
Sa amin po. |
| Prosecutor Lao
Veniza Santos Panem |
Doon sa inyo? May opisina siya doon?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
May sarili siyang kwarto doon?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Lagi mo siyang makikita doon?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
8:00 to 5:00? Whole day?
Hindi naman po whole day. |
| Prosecutor Lao |
Mga anong oras? Example Monday to Friday ... lagi ba siyang nandoon? |
| Veniza Santos Panem |
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
So hindi siya pala-absent?
Minsan naman po wala naman po siya. |
| Prosecutor Lao |
Pero minsan lang, absent siya minsan, kasi nagnonotaryo siya ng mga documents. |
| Veniza Santos Panem |
Meron po siyang secretary na nagno-notaryo. |
| Prosecutor Lao
Veniza Santos Panem |
Secretary niya nagno-notaryo?
Opo. |
| Prosecutor Lao
Veniza Santos Panem |
Sino yung secretary nya?
Si Imelda Saulo po. |
| Prosecutor Lao |
Kapag wala si Atty. Alvarez, si Imelda ang nagno-notaryo? |
| Veniza Santos Panem |
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Attorney ba si Imelda?
Hindi po. |
| Prosecutor Lao
Veniza Santos Panem |
Ano siya?
Hindi ko po alam e. |
| Prosecutor Lao
Veniza Santos Panem |
Ano ang tawag sa opisina nila?
Legal department po. |
| Prosecutor Lao |
Sila sa Legal department sila ni Atty. Alvarez at Imelda Saulo. |
| Veniza Santos Panem |
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Yung Legal department malapit sa office nyo?
Magkatapat po yung room. |
| Prosecutor Lao
Veniza Santos Panem |
So kapag pumapasok si Atty. Alvarez, makikita mo?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Araw-araw ba doon? Madalas mo ba siya [makita] doon?
Yes, madalas po. |
| Prosecutor Lao
Veniza Santos Panem |
Example pumasok siya ngayong Monday, 8 to 5 nandun siya? Kapag pumapasok siya, usually nandun lang siya sa office?
Yes, your Honor. |
| Prosecutor Lao
Veniza Santos Panem |
Nagtatagal ba siya doon?
Hindi po. Mga halfday po. |
| Prosecutor Lao
Veniza Santos Panem |
Halfday. Ano usually morning or afternoon?
Morning po. |
| Prosecutor Lao |
So pag lunchtime umaalis na yan. Tapos babalik bukas na. |
| Veniza Santos Panem |
Yes, your Honor.25 |
Furthermore, the NBI report dated 29 October 2010 stated that:
Upon initial investigation of the sampling of loan folders submitted by Mr. DELFIN LEE for Globe Asiatique, it was discovered that majority of the fake and/or fraudulent loan documents were notarized by ATTY. ALEX ALVAREZ, an employee of Pag-IBIG assigned in its Legal Department and holding office in the HDMF head office. When invited for questioning by the NBI, ATTY. ALVAREZ admitted that he receives a monthly salary of ₱30,000 from Globe Asiatique in exchange for notarizing its documents (regardless of [illegible]). [Illegible] the borrowers to personally appear before him as the documents are brought to him for such notarization in batches. He claimed during the interviewthat he is not required to secure special permission from the President of Pag-IBIG to undertake limited practice of law (which includes notarizing documents) because only those with Salary Grade 23 or lower are required to secure such permission, and there is no specific provision governing someone like him with Salary Grade 24.26
I cannot countenance Atty. Alvarez's actuations as that of a "mere" notary public. Atty. Alvarez was the Manager of HDMF's Foreclosure Department with Salary Grade 24. Despite being Manager of HDMF's Foreclosure Department, Atty. Alvarez ignored the glaring conflict of interest when he notarized loan applications with HDMF at the office of Globe Asiatique where he held office part-time, moonlighting as head of the legal department of Globe Asiatique. Worse, Atty. Alvarez notarized the loan applications without the personal appearance of the loan applicants. As Manager of HDMF's Foreclosure Department, he would be foreclosing on loans with fictitious borrowers based on mortgage documents that he himself notarized. Atty. Alvarez probably thought that the fictitious loan applicants would never be discovered since as Manager of HDMF's Foreclosure Department he had control of the foreclosures, and he could just expeditiously foreclose the mortgages without disclosing the fictitious mortgagees. For a monthly salary of ₱30,000 from Globe Asiatique, Atty. Alvarez made wholesale guarantees that the loan documents and supporting papers were submitted to him by persons who "personally appeared before him." Any agreement between Globe Asiatique and HDMF would not have materialized if it were not for Globe Asiatique's submission of mortgage documents notarized by Atty. Alvarez. Atty. Alvarez's participation in the entire scheme was a crucial and necessary step in Globe Asiatique's inducement of HDMF to release the loan proceeds to Globe Asiatique.
Syndicated Estafa
The 22 May 2012 Resolution of the Pampanga RTC found probable cause for the crime of estafa (Article 315(2)(a) of the RPC, in relation to Section 1 of PD 1689, as amended) against Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, and issued warrants of arrest against them with no bail recommended.
Article 315(2)(a) of the RPC reads:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
x x x x
(2) By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
PD 1689, which increased the penalty for estafa, if committed by a syndicate provides:
Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers association, or of funds solicited by corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.
Under Section 1 of PD 1689, the elements of syndicated estafa are: (1) estafa or other forms of swindling as defined in Articles 315 and 316 of the RPC are committed; (2) the estafa or swindling is committed by a syndicate of five or more persons; and (3) the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers' associations or of funds solicited by corporations/associations from the general public.27
Under PD 1689, syndicated estafa includes cases where fraud results in the misappropriation of funds solicited by corporations/associations from the general public. Thus, the law does not require that the perpetrator or the accused corporation/association be the one to solicit the funds from the public. The law merely requires that the "defraudation results in the misappropriation of money x x x or of funds solicited by corporations/ associations from the general public."
The alleged fraud perpetrated resulted in the misappropriation of funds of the HDMF or PAG-IBIG Fund which is undisputedly a provident fund of the general public. The PAG-IBIG Fund consists of mandatory contributions solicited by HDMF from all employees in the public and private sectors. The PAG-IBIG Fund includes the mandatory contributions of the approximately 28,000 employees of the Judiciary whose contributions were part of the ₱2.9 Billion loan proceeds received by Globe Asiatique from HDMF through the nine (9) FCAs executed by Globe Asiatique with HDMF. These nine FCAs dated 12 August 2008 (₱500 Million), 11December 2008 (₱100 Million), 9 January 2009 (₱500 Million), 20 February 2009 (P500 Million), 23 April 2009 (₱100 Million), 28 April 2009 (₱300 Million), 18 May 2009 (₱300 Million), 16 June 2009 (₱300 Million), and 10 July 2009 (₱300 Million), were executed prior to the execution of the MOA on 13 July 2009.28 Thus, even before the execution of the MOA dated 13 July 2009, which Globe Asiatique contends relieves it of its warranties, estafa was already consummated.
After the MOA dated 13 July 2009, eight more FCAs were executed between Globe Asiatique and HDMF totaling ll3.55 Billion: 13 July 2009 (₱500 Million), 24 September 2009 (₱500 Million), 22 October 2009 (₱700 Million), 15 December 2009 (₱250 Million), 5 January 2010 (₱500 Million), 17 March 2010 (₱500 Million), 19 March 2010 (₱500 Million), and 12 May 2010 (₱100 Million).29 On 24 May 2010, HDMF issued a Notice to Delfin S. Lee for Globe Asiatique to validate the 3 51 buyers which were discovered by HDMF to have either surrendered or withdrawn their loans. In response to the Notice, Delfin S. Lee admitted that they are monitoring about 1,000 accounts which are suspected to be from questionable buyers, and that these accounts remain current with PAG-IBIG because Globe Asiatique had been paying for them.30 Clearly, Globe Asiatique tried to cover-up or conceal the defaulting questionable buyers by paying on their behalf, thus keeping their accounts current. Globe Asiatique is the instrument used to defraud the HDMF of the PAG-IBIG Fund.
In short, the PAG-IBIG Fund consists of monetary contributions solicited from the general public by HDMF, which is indisputably a corporate entity. Under Section 13 of Republic Act No. 7679, "the Fund (HDMF) shall have the powers and functions specified in this Act and the usual corporate powers." Under Section 14 of the same law, the "corporate powers and functions of the Fund shall be vested in and exercised by the Board of Trustees appointed by the President of the Philippines." The PAGIBIG Fund is the fund that was defrauded by Delfin S. Lee and his four (4) co-accused through the use, and submission to HDMF, of loan applications and mortgage documents of fictitious loan applicants.
No grave abuse of discretion in trial court's determination of probable cause
The Pampanga RTC's determination of probable cause, which was in accord with the findings of the DOJ, shows no grave abuse of discretion. Hence, the claim of Cristina Salagan that there was no probable cause to charge her with syndicated estafa deserves scant consideration.
III. 1. G.R. No. 208744 - Department of Justice v. Delfin S. Lee
2. G.R. No. 210095 - Department of Justice v. Delfin S. Lee
Procedural rules may be relaxed under exceptional circumstances
I agree with the ponencia that the CA should not have dismissed the petitions for being filed out of time because there existed special and compelling reasons for the relaxation of procedural rules.
Rules of procedure are indispensable to facilitate the orderly and speedy adjudication of cases. Courts are constrained to adhere to procedural rules under the Rules of Court. Nevertheless, under Section 6 of Rule 1, courts are granted the leeway in interpreting and applying the rules:
Sec. 6. Construction. - These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.
However, courts are not given carte blanche authority to interpret rules liberally and the resort to liberal application of procedural rules remains as the exception to the well-settled principle that rules must be complied with for the orderly administration of justice. 31
Section 4 of Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, provides for the period for filing petitions for certiorari:
SECTION 4. When and Where to File the Petition. - The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.
x x x x
Although the provision on motion for extension32 has been deleted in the amended Section 4, such omission does not automatically mean that a motion for extension is already prohibited. As held in Domdom v. Third & Fifth Divisions of the Sandiganbayan:33
That no mention is made in the x x x amended Section 4 of Rule 65 of a motion for extension, unlike in the previous formulation, does not make the filing of such pleading absolutely prohibited. If such were the intention, the deleted portion could just have simply been reworded to state that "no extension of time to file the petition shall be granted." Absent such prohibition, motions for extension are allowed, subject to the Court's sound discretion.
The 18 June 2013 Petition for Certiorari was filed before the CA within the extended period requested by petitioner. However, due to the unintended omission of the docket number (CA-G.R. SP No. 130404), the petition was assigned a new docket number (CA-G.R. SP No. 130409) and raffled to another ponente and division. This resulted in the dismissal of the petition for being filed out of time. As explained by petitioner DOJ, the procedural lapse was due to inadvertence and not intended to delay the proceedings. Considering the merits of the petition and having been filed within the extended period requested, albeit lacking the proper docket number, the CA should have applied the rules liberally and excused the belated filing. 34 It is more prudent for the court to excuse a technical lapse to avoid causing grave injustice not commensurate with the party's failure to comply with the prescribed procedure. 35 Furthermore, the merits of the case may be considered as a special or compelling reason for the relaxation of procedural rules. 36
The Pasig RTC disregarded a prior CA and SC ruling on the same issue when it issued the writ of preliminary injunction
The Petition for Certiorari filed with the CA assailed the 10 April 2013 Order of the Pasig RTC enjoining the continuation of the preliminary investigation by the DOJ of the Second, Third, and Fourth Criminal Complaints. The Pasig RTC held that the Summary Judgment dated 30 January 2012 in Civil Case No. 10-1120 (Makati Civil Case) issued by the Makati RTC eliminates the element of damage in the criminal complaints against Delfin S. Lee, which is an integral condition for an estafa case to prosper against the latter. The Pasig RTC explained:
The Court premised its issuance of the TRO based on the Makati RTC Branch 58 Summary Judgment dated 30 January 2012 and Order dated 11 December 2012 declaring the same to be final and executory.
The resolution of the Makati Court required intervenor HDMF to honor the terms and conditions of the Funding Commitment Agreement and other contracts entered into between the parties. Clearly thus, intervenor HDMF's performance of its obligations under the Funding Commitment Agreement, Collection Service Agreement and Memorandum of Agreement eliminates the element of damage in the criminal complaints against petitioner which is a condition sine qua non for an estafa case to prosper against it [sic]. Note further that although the Court of Appeals ("CA") Decision dissolving the Writ of Preliminary Injunction issued by this Court in restraining the second criminal complaint had been affirmed via a petition for review on certiorari, the subsequent rendition of the Summary Judgment by the Makati RTC 58 constitutes a supervening event to enjoin anew the proceedings in the second criminal complaint as the rendition of which and its eventual finality was clearly not yet extant and could not have been considered by the CA decision when the same was penned. Furthermore, the CA decision refers only to the injunction order issued by the Court and not to the Makati RTC 5 8 case which is still pending at the time. Reliance therefore on the CA decision as per second criminal complaint can no longer be made in light of the summary judgment and its finality. In the same vein, the injunction order should likewise extend to the third and fourth criminal complaints lodged against herein petitioner for compliance with the Summary Judgment by intervenor HDMF is concomitant with that of petitioner's compliance with his own obligations to the buyers considering that the titles of the private complainants which are presently in the possession of intervenor HDMF ought to be released and delivered to them, negating the breach being cited by the private complainants as the underlying premise for the criminal complaints against petitioner.
In essence, the summary judgment held that there can be no fraud and damages, an essential element for the crime of estafa, because it is HDMF that approved the Pag-Ibig membership and loan applications of the private complainants.
x x x x
In the case at bar, grave and irreparable damage would be caused to petitioner because he will most likely be indicted for another non-bailable offense despite the fact that the RTC Makati 5 8 already held that he committed no fraud against the private complainants. And to expose petitioner to unnecessary trauma, hardship, inconvenience, anxiety, and fear associated with a criminal prosecution amounts to grave and irreparable injury which must be prevented.
Premises considered, and without prejudice to the final outcome of the certiorari proceeding pending against the assailed Summary Judgment of the Makati RTC 58 on the issue of the existence or non-existence of fraud committed by the respondent herein against intervenor HDMF and/or private complainants, the Court finds at this point in time that petitioner has an existing and valid right to be protected necessitating the issuance of an injunctive relief in its favor.
WHEREFORE, let a writ of preliminary injunction issue enjoining the Department of Justice and any other person or panel under its supervision from continuing with the preliminary investigation of NPS Docket No. XVI-INV-10L-00363, the Second Criminal Complaint, NPS Docket No. XVI-INV-11B-00063, the Third Criminal Complaint, and NPS Docket No. XVI-INV-11C-00138, the Fourth Criminal Complaint.
Petitioner is directed to post a bond in the amount of Php2,000,000.00.37
As stated in this 10 April 2013 Order of the Pasig RTC, there was already a prior CA Decision dated 16 April 2012 in CA-G.R. SP No. 121594 which lifted the previous writ of preliminary injunction issued by the Pasig RTC in its Order dated 5 September 2011, restraining the DOJ from proceeding with the preliminary investigation of the Second Criminal Complaint. The CA ruling annulling the 5 September 2011 Order of the Pasig RTC for having been issued with grave abuse of discretion was affirmed by this Court in a Resolution dated 4 July 2012 in G.R. No. 201360. Clearly, the issue of whether the preliminary investigation of the criminal complaints can be enjoined has already been ruled upon with finality by this Court, which affirmed the ruling of the CA in CA-G.R. SP No. 121594, and which decision became final and executory on 2 January 2013. As ruled by the CA in its Decision dated 16 April 2012 in CA-G.R. SP No. 121594:
Anent the second DOJ case, the resolution of whether GA is entitled to replace the defaulting buyers/borrowers would not determine the guilt of Lee as the gravamen of the complaint for estafa filed by Niebres and Bacani against GA and Lee was the failure of GA to release to them the title to the respective property which they already paid in full because it turned out that the properties sold to them were subject of loans under the name of other persons. In the case of San Nicolas, on the other hand, he was paying for a property that was also a subject of a loan by another person.
Contrary to public respondent Judge's finding, the acceptance by HDMF of the replacement buyers that GA is offering will not in any way affect Lee's liability to Niebres, Bacani, and San Nicolas in selling to themunits which were already sold to other buyers. x x x.
x x x x
What is clear in the second DOJ case is that the properties bought by complainants were subjects of double sale. The sale by GA of the units, already paid in full by Niebres, Bacani and still being paid for by San Nicolas, to other individuals created a temporary disturbance in the rights of the latter as property owners. Even if the Makati RTC would rule in favor of Lee, Niebres, Bacani and San Nicolas would not qualify as replacement buyers. Hence, the preemptive resolution of the civil case before the DOJ could conduct a preliminary investigation in the second DOJ case would not affect the determination of guilt or innocence of Lee for estafa.
To reiterate, injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and protected [sic] for the protection of society. It is only in extreme cases that injunction will lie to stop criminal prosecution. Public respondent Judge anchored his issuance of the writ on the existence of prejudicial question. However, this Court finds that the facts and issues in the Makati civil case are not determinative of Lee's guilt or innocence in the cases filed before the DOJ. Verily, public respondent Judge committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he issued the writ of preliminary injunction enjoining the DOJ from filing an information for estafa against Lee in the first DOJ case and from proceeding with the preliminary investigation in the second DOJ case.38 (Emphasis supplied)
Unfortunately, the Pasig RTC chose to ignore this ruling and issued again an Order for another writ of preliminary injunction, enjoining the DOJ from continuing with the Second, Third, and Fourth Criminal Complaints. It should be stressed that the private complainants in the Second, Third, and Fourth Criminal Complaints are similarly situated: all of them are alleged victims of double sales by Globe Asiatique and Delfin S. Lee. Clearly, the issuance of another writ of preliminary injunction by the Pasig RTC in its 10 April 2013 Order is a blatant disregard of the decision of this Court (which affirmed the CA Decision dated 16 April 2012 in CA-G.R. SP No. 121594). The Summary Judgment rendered by the Makati RTC does not determine the criminal liability of Delfin S. Lee for syndicated estafa in the Second, Third, and Fourth Criminal Complaints which involve double sales. Besides, the Summary Judgment merely orders the HDMF to comply with its obligations under the MOA with Globe Asiatique, including the acceptance of replacement buyers. The acceptance of replacement buyers contemplates defaulting buyers/borrowers of their loan and not double sales. The double sales allegedly perpetuated by Globe Asiatique and Delfin S. Lee in the Second, Third, and Fourth Criminal Complaints, were never an issue in the Makati Civil Case. In fact, the private complainants in the Second, Third, and Fourth Criminal Complaints are not parties to the Makati Civil Case, which was filed by Globe Asiatique and Delfin S. Lee against HDMF, its Board of Trustees, and OIC Faria. Clearly, the 10 April 2013 Order of the Pasig RTC is void for having been issued with grave abuse of discretion.
At this juncture, it bears stressing that the general rule is that criminal prosecution may not be restrained or stayed by injunction or prohibition39 because public interest requires the immediate and speedy investigation and prosecution of criminal acts for the protection of society. 40 With more reason will injunction not lie when the case is still at the preliminary investigation stage.41 As the court held in Atty. Paderanga v. Drilon:42
Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the person against whom it is taken in jeopardy.
The institution of a criminal action depends upon the sound discretion of the fiscal. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court. Hence, the general rule is that an injunction will not be granted to restrain a criminal prosecution.
However, there are exceptions to this rule, such as:
1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where there is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for vengeance;
10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied;
11. Preliminary injunction has been granted by the Supreme Court to prevent the threatened unlawful arrest of petitioners. 43
The Pasig RTC case does not fall under any of these exceptions. Thus, Judge Mislang of the Pasig RTC should not have issued the writ of preliminary injunction.
To underscore the wrongful actuations of Judge Mislang in handling the HDMF cases before his sala, this Court dismissed Judge Mislang from the service on 26 July 2016.44 The pertinent portions of our per curiam decision read:
Judge Mislang issued two (2) TROs, a writ of preliminary injunction and a status quo order, both of which did not satisfy the legal requisites for their issuance, in gross violation of clearly established laws and procedures which every judge has the duty and obligation to be familiar with. The antecedent incidents of the case brought before Judge Mislang were clear and simple, as well as the applicable rules. Unfortunately, he miserably failed to properly apply the principles and rules on three (3) points, i.e., the prematurity of the petition, the inapplicability of the prejudicial question, and the lack of jurisdiction of the court. His persistent disregard of well-known elementary rules in favor of Lee clearly reflects his bad faith and partiality.
x x x x
WHEREFORE, PREMISES CONSIDERED, the Court finds Judge Rolando G. Mislang, Regional Trial Court, Pasig City, Branch 167, GUILTY of Gross Ignorance of the Law in A.M. No. RTJ-14-2369 and A.M. No. RTJ-14-2372 and ORDERS his DISMISSAL from the service with FORFEITURE of retirement benefits, except leave credits, and with prejudice to re-employment in any branch or instrumentality of the government, including government-owned and controlled corporations.
SO ORDERED.45
IV. G.R. No. 209424 - Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his capacity as the President of the corporation, and Tessie G. Wang
Petition for certiorari is the proper remedy
In its Decision dated 7 October 2013 in CA-G.R. SP No. 128262, the CA held that a summary judgment is a final judgment and that the proper remedy for petitioner HDMF was to file an ordinary appeal under Rule 41 and not a petition for certiorari under Rule 65. The CA noted that the petition filed by HDMF lacks: (1) a written authorization from the OGCC that the Yorac Arroyo Chua Caedo & Coronel Law Firm or the HDMF Office of the Legal and General Counsel Group is duly authorized to file the petition; and (2) the written concurrence of the COA for the OGCC to delegate its duty to represent HDMF to file the petition. The CA ruled that the HDMF Office of the Legal and General Counsel Group and the Yorac Arroyo Chua Caedo & Coronel Law Firm had no authority to file the petition for certiorari. Thus, the CA dismissed the petition for certiorari mainly on technical grounds.
The CA did not rule on the propriety of the summary judgment, thus:
As to the issue on whether the Summary Judgment as contained in the first assailed Resolution was rendered in accordance with the law, particularly Rule 35 of the Rules of Court, and as to the wisdom and correctness of the Summary Judgment, thereby treating the instant petition as one of appeal, considering that the case involves paramount public interest, We refuse to dwell on the matter as the same, as elucidated above, is clearly not the proper subject of the instant petition for certiorari which only province is the determination of lack or excess of jurisdiction, or grave abuse of discretion amounting to lack or excess of jurisdiction.46
It should be noted that in its 11 December 2012 Resolution, the Makati RTC held that the Motion for Reconsideration filed by the Yorac Arroyo Chua Caedo & Coronel Law Firm on behalf of HDMF is unauthorized and may be deemed a mere scrap of paper which does not toll the running of the period of appeal. The Makati RTC held that for failure of HDMF to file a valid motion for reconsideration or appeal of the Resolution dated 30 January 2012 containing the summary judgment, such has become "final, executory, and immutable" insofar as HDMF is concerned.
The dispositive portion of the 11 December 2012 Resolution reads: WHEREFORE, premises considered, the Court hereby resolves to:
1. DENY the motions for reconsideration of the January 30, 2012 Resolution of this Court filed by defendants Faria and Atty. Berberabe for lack of merit; and
2. NOTE with approval the Manifestation filed by plaintiffs in connection with the failure of defendant Home Development Mutual Fund (HDMF) to file a motion for reconsideration or appeal from the January 30, 2012 Resolution of this Court containing the Summary Judgment which, except as to the exact amount of damages the plaintiffs are entitled, finally disposes of this case, rendering the summary judgment herein final, executory, and immutable as to defendant HDMF.
SO ORDERED.47
Clearly, the finality of the judgment as against HDMF necessitates the filing of a petition for certiorari since a notice of appeal is barred where the judgment sought to be appealed is already final and executory. As held in Victory Liner, Inc. v. Malinias:48
Thus, the MTC judgment became final and executory despite the filing of the Motion for Reconsideration thereto, as said motion did not toll the period for filing an appeal therefrom. Yet that did not mean that petitioner was left bereft of further remedies under our Rules. For one, petitioner could have assailed the MTC's denial of the Motion for Reconsideration through a special civil action for certiorari under Rule 65 alleging grave abuse of discretion amounting to lack of jurisdiction on the part of the MTC in denying the motion. If that remedy were successful, the effect would have been to void the MTC's denial of the Motion for Reconsideration, thus allowing petitioner to again pursue such motion as a means towards the filing of a timely appeal.
x x x x
On the other hand, a notice of appeal pursued even with a prior pronouncement by the trial court that the judgment sought to be appealed was already final is either misconceived or downright obtuse. It may have been a different matter if the notice of appeal was undertaken without there being any prior express ruling from the trial court that the appealed judgment was already final and that statement was instead expressed at the time the trial court denies the notice of appeal, for at least in that case, the appellant proceeded with the appeal with the comfort that the trial court had not yet said that the appeal was barred. However, as in this case, where the trial court already notified would-be appellant that the judgment was already final, executory and thus beyond appeal, appellant should suffer the consequences if the notice of appeal is nonetheless stubbornly pursued.
Similarly, in this case, the Motion for Reconsideration filed by HDMF was held unauthorized by the Makati RTC and deemed a mere scrap of paper which did not toll the running of the period of appeal. Thus, compared to Faria and Atty. Berberabe whose motions for reconsideration were denied for lack of merit, the Makati RTC ruled that the summary judgment is "final, executory, and immutable as to defendant HDMF." In light of this ruling, HDMF had to file a petition for certiorari, while Faria and Atty. Berberabe filed their notice of appeal.
Furthermore, where there is absolutely no legal basis for the rendition of a summary judgment, a petition for certiorari is the appropriate, adequate, and speedy remedy to nullify the assailed judgment to prevent irreparabledamage and injury to a party. As held in Cadirao v. Judge Estenzo:49
Anent the propriety of the remedy availed of by the petitioners, suffice it to state, that although appeal was technically available to them, certiorari still lies since such appeal does not prove to be a speedy and adequate remedy. Where the remedy of appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as a mode of redress to prevent irreparable damage and injury to a party. Certiorari is a more speedy and efficacious remedy of nullifying the assailed summary judgment there being absolutely no legal basis for its issuance. Moreover, the records show that private respondent had already moved for the issuance of a writ of execution and that respondent Judge merely held in abeyance resolution of the same pending resolution by this Court of the instant petition. Clearly then, even if appeal was available to the petitioners, it is no longer speedy and adequate.
The propriety of certiorari as the more speedy and adequate remedy is underscored by the fact that respondents Globe Asiatique and Delfin S. Lee have already filed a Motion for Execution50 dated 19 March 2013 against HDMF. HDMF contends that if the motion is granted, HDMF will be required to release hundreds of millions or billions of pesos, money which came from the hard-earned contributions of HDMF members, in favor of Globe Asiatique. Moreover, HDMF posits that it will also be compelled to accept the replacement buyers offered by Globe Asiatique, whose accounts may be equally spurious as those of the original buyers whose applications were approved by Globe Asiatique.51
On the alleged unauthorized representation of the Yorac Arroyo Chua Caedo & Coronel Law Firm on behalf of HDMF, the records show that the OGCC in fact authorized HDMF to engage the services of the said private law firm as evidenced by the letters dated 28 December 201052 and 5 December 2011 53 signed by Government Corporate Counsel Raoul C. Creencia. Furthermore, in the COA Certification dated 10 January 2013,54 COA Corporate Auditor Atty. Fidela M. Tan attested that the COA has concurred in the retainer agreement between HDMF and the Yorac Arroyo Chua Caedo & Coronel Law Firm. Clearly, the Yorac Arroyo Chua Caedo & Coronel Law Firm is vested with the proper authority to represent HDMF, and was in fact authorized to file the Motion for Reconsideration dated 17 February 2012 on behalf of HDMF.
Summary Judgment is not proper because there are genuine issues of material facts
The Makati RTC Resolution dated 30 January 2012 granted the Motion for Summary Judgment filed by Globe Asiatique and Delfin S. Lee against HDMF, and ordered the latter to comply with its obligations under the MOA, FCAs, and CS As. The dispositive portion of the resolution states:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered declaring that:
1. Plaintiffs have proven their case by preponderance of evidence. As such, they are entitled to specific performance and right to damages as prayed for in the Complaint, except that the exact amount of damages will have to be determined during trial proper[;]
2. Pursuant to the provisions of their MOA amending the continuing FCAs and CSAs, defendant HDMF is hereby ordered to comply faithfully and religiously with its obligations under the said contracts, including but not limited to the release of loan take-out proceeds of those accounts whose Deed[s] of Assignment with Special Power of Attorney have already been annotated in the corresponding Transfer Certificate of Title covering the houses and lots purchased by the PAG-IBIG member-borrowers from plaintiff GARHC as well as the evaluation of the loan applications of those who underwent or will undergo plaintiff GARHC's loan counseling and are qualified for PAG-IBIG FUND loans under the MOA and continuing FCAs and process the approval thereof only if qualified, under the Window 1 Facility as provided for in the MOA and continuing FCAs;
3. The unilateral cancellation by defendant HDMF of the continuing FCAs specifically the latest FCAs of December 15, 2009, January 5 and March 17, 2010 and CSA dated 10 February 2009, is hereby SET ASIDE[;]
4. Defendants are ordered to automatically off-set the balance of those listed in Annex "E" of the Motion for Summary Judgment against the retention money, escrow money, funding commitment fee, loan take-out proceeds and other receivables of plaintiff GARHC which are still in the control and possession of defendant HDMF;
5. Defendants are ordered to accept the replacement-buyers listed in Annex "F" of the Motion for Summary Judgment, which list is unopposed by defendants, without interest or penalty from the time of defendant HDMF's cancellation of the Collection Servicing Agreement (CSA) resulting to the refusal to accept the same up to the time that these replacement buyers are actually accepted by defendant HDMF;
6. Defendants are ordered to release the corresponding Transfer Certificate of Title[s] (TCTs) of those accounts which are fully paid or subjected to automatic off-setting starting from the list in Annex "E" of the Motion for Summary Judgment and thereafter from those listed in Annex "F" thereof and cause the corresponding cancellation of the annotations in the titles thereof.
Let this case be set for the presentation of evidence on the exact amount of damages that plaintiffs are entitled on March 12, 2012 at 8:30 in the morning.
SO ORDERED.55
A summary judgment is a procedural technique designed to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions, and affidavits on record.56 The purpose of summary judgment is to grant immediate relief in cases where no genuine triable issue of fact is raised, and thus avoid needless trials and delays. Summary judgment should not be granted unless the records show with certainty that there is no disputable issue as to any material fact which would prevent recovery from the party presenting the motion for summary judgment if a full-blown trial is conducted. The party who moves for summary judgment has the burden of proving the absence of any genuine issue as to any material fact or that the issue posed is patently unsubstantial and does not constitute a genuine issue for trial. 57
Summary judgment is provided under Rule 35 of the 1997 Rules of Civil Procedure. Sections 1 and 3 of Rule 35 read:
Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.
Section 3. Motion and proceedings thereon. - The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Section 3 of Rule 35 provides two requisites for the grant of a summary judgment: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. Thus, where the pleadings tender a genuine issue which requires the presentation of evidence, the rendition of a summary judgment is not proper. A "genuine issue" is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived, or false claim.58
Contrary to the ruling of the Makati RTC, the pleadings of the parties show the existence of genuine issues of material facts, rendering the summary judgment improper.
In its Complaint dated 13 November 2010,59 Globe Asiatique claims that: (1) Globe Asiatique has the right to replace the buyers/borrowers who have been delinquent for whatever reason and that the refusal of Pag-IBIG Fund [HDMF] to accept the replacements violated Globe Asiatique 's rights to exercise the remedies available to it under the provisions of the MOA and FCA; (2) Pag-IBIG Fund's precipitate cancellation of the latest FCA and its refusal to release the collectibles/loan take-outs to which Globe Asiatique is entitled caused the latter's failure to comply with its obligations under the MOA and FCA; and (3) Pag-IBIG Fund's cancellation of the latest FCA and CSA was intended to cause Globe Asiatique to fail to comply with its obligations under the MOA and as a consequence lose its incentives for its good performance for the past years and the potential to earn under the agreements.
On the other hand, in its Answer with Compulsory Counterclaim dated 8 December 2010,60 HDMF refutes Globe Asiatique's claims, thus: (1) HDMF has the right to terminate the agreements because of Globe Asiatique's "grand fraudulent scheme through the creation of ghost buyers and fabrication of loan documents" which violates the 13 July 2008 MOA and the 5 January 2010 FCA; (2) the alleged defaulting buyers/borrowers sought to be replaced by Globe Asiatique are in fact fake and fictitious buyers/borrowers; (3) under Section 3. 7 (Buyback of Accounts) of the FCA, the remedy of buyback of accounts can only be availed of after receipt of the Notice of Buyback, which Pag-IBIG Fund did not issue for the 400 accounts mentioned by Globe Asiatique in its Complaint, which Globe Asiatique unilaterally canceled; (4) Section 3.7 of the FCA applies only in case of default and not when the cause for buyback is fraud or breach by Globe Asiatique of any of its warranties; (5) the CSA was canceled due to Globe Asiatique's failure to remit the amortization collections for the periods covering August 2-6, 2010 and August 9-13, 2010; (6) Pag-IBIG Fund canceled the 15 September 2010 FCA because of Globe Asiatique's failure to: a) buyback CTS accounts, other than the 400 accounts mentioned in Globe Asiatique's Complaint which Globe Asiatique unilaterally canceled and which were not subjected to Notices of Buyback by Pag-IBIG Fund; and b) remit the collection covering monthly installment payments of housing loan accounts under the CSA; and (7) Globe Asiatique violated its undertaking and warranty under Sections 3 .1 61 and 7 .1 62 of the FCA when it approved loan applications which were not eligible under the Pag-IBIG Housing Loan Program.
It is very apparent from the allegations in the parties' respective pleadings that there exist relevant genuine issues which require the presentation of evidence and which need to be resolved in a full-blown trial. Summary judgment cannot take the place of trial since the facts as pleaded by Globe Asiatique are categorically disputed and contradicted by HDMF.
Thus, the CA Decision dated 7 October 2013 in CA-G.R. SP No. 128262 should be reversed and the 30 January 2012 and 11 December 2012 Resolutions of the Makati RTC in Civil Case No. 10-1120 should be annulled and set aside. The case should be remanded to the Makati RTC for trial on the merits.
For the orderly disposition of these cases, my vote is summarized as follows:
I. DOJ Review Resolution dated 10 August 2011
1. G.R. No. 205698 - Home Development Mutual Fund (HDMF) PAG-IBIG Fund v. Christina Sagun
2. G.R. No. 205780 - Department of Justice, represented by Sec. Leila De Lima, State Prosecutor Theodore M Villanueva and Prosecutor General Claro A. Arellano, and the National Bureau of Investigation v. Christina Sagun
The petitions filed by HDMF and DOJ should be GRANTED. The 5 October 2012 Decision and the 11 February 2013 Resolution in CA-G.R. SP No. 121346 should be REVERSED. The Warrant of Arrest issued in Criminal Case No. 18480 before RTC Branch 42 of San Fernando, Pampanga against Christina Sagun should be REINSTATED.
II. Pampanga RTC Resolutions dated 22 May 2012 and 22 August 2012
1. G.R. No. 209446 - People of the Philippines v. Alex M Alvarez
2. G.R. No. 209489 - Home Development Mutual Fund v. Atty. Alex M Alvarez
3. G.R. No. 209852 - Home Development Mutual Fund (HDMF) v. Delfin S. Lee
4. G.R. No. 210143 - People of the Philippines v. Delfin S. Lee
5. G.R. No. 228452 - Home Development Mutual Fund (HDMF) v. Dexter L. Lee 6. G.R. No. 228730 - People of the Philippines v. Dexter L. Lee
7. G.R. No. 230680 - Cristina Salagan v. People of the Philippines and Home Development Mutual Fund (HDMF)
The petitions filed by HDMF and OSG should be GRANTED. The 3 October 2013 Decision in CA-G.R. SP No. 127690, the 7 November 2013 Decision in CA-G.R. SP No. 127553, and the 16 November 2016 Decision in CA-G.R. SP No. 127554 should be REVERSED. The Warrants of Arrest issued in Criminal Case No. 18480 before RTC, Branch 42 of San Fernando, Pampanga against Delfin S. Lee, Dexter L. Lee, and Atty. Alex M. Alvarez should be REINSTATED. The petition filed by Cristina Salagan should be DISMISSED, and the Decision dated 18 March 2016 in CA-G.R. SP No. 134573 should be AFFIRMED.
III. Pasig RTC Order dated 10 April 2013
1. G.R. No. 208744 - Department of Justice v. Delfin S. Lee
2. G.R. No. 210095 - Department of Justice v. Delfin S. Lee
The CA Resolutions dated 14 August 2013 in CA-G.R. SP No. 130404 and the CA Resolution dated 26 June 2013 in CA-G.R. SP No. 130409 should be REVERSED. The Order dated 10 April 2013 of the Pasig RTC in Civil Case No. 73115-PSG, issuing the writ of preliminary injunction enjoining the DOJ from continuing the preliminary investigation of the Second, Third, and Fourth Criminal Complaints should be ANNULLED and SET ASIDE.
IV. Makati RTC Resolutions dated 30 January 2012 and 11 December 2012
1. G.R. No. 209424 - Home Development Mutual Fund (HDMF) v. Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his capacity as the President of the corporation, and Tessie G. Wang
The CA Decision dated 7 October 2013 in CA-G.R. SP No. 128262 should be REVERSED and the 30 January 2012 and 11 December 2012 Resolutions of the Makati RTC in Civil Case No. 10-1120 should be ANNULLED and SET ASIDE. The case should be REMANDED to the Makati RTC for trial on the merits.
ANTONIO T. CARPIO
Senior Associate Justice
Footnotes
1 Rollo (G.R. No. 205698), Vol. I, pp. 56-57.
2 Rollo (G.R. No. 208744), p. 122.
3 Id. at 118-121.
4 Id. at 198.
5 Home Development Mutual Fund v. The Hon. Eugene S. Paras, in his official capacity as the Presiding Judge of Branch 58 of the Regional Trial Court of Makati, Globe Asiatique Realty Holdings Corporation, Delfin S. Lee, in his capacity as President of the corporation and Tessie G. Wang.
6 Globe Asiatique Realty Holdings Corporation and Delfin S. lee, in his capacity as President of the corporation v. Home Development Mutual Fund (HDMF) or PAG-IBIG Fund, its Board of Trustees and Emma Linda Faria, Officer-in-Charge.
7 Rollo (G.R. No. 209424), Vol. I, pp. 14-34.
8 Rollo (G.R. No. 209446), Vol. I, pp. 31-32.
9 Delfin S. Lee v. Ma. Amifaith S. Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando, Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
10 People v. Delfin S. lee, Dexter l. lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, docketed as Criminal Case No. 18480 for syndicated estafa under Article 315(2)(a) of the RPC in relation to Section I of PD 1689, as amended.
11 Rollo (G.R. No. 209852), Vol. I, pp. 42-43.
12 Delfin S. Lee v. Ma. Amifaith S. Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando, Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
13 Dexter L. Lee v. Ma. Amifaith S. Fider-Reyes in her capacity as Presiding Judge of RTC Br. 42, San Fernando, Pampanga, People of the Philippines, and Home Development Mutual Fund (HDMF).
14 People of the Philippines v. Delfin S. Lee, Dexter L. lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez, docketed as Criminal Case No. 18480 for syndicated estafa under Article 315(2)(a) of the RPC in relation to Section 1 of PD 1689, as amended.
15 Rollo (G.R. No. 228730), pp. 32-33.
16 Rollo (G.R. No. 230680), Vol. I, p. 365.
17 DOJ Department Circular No. 70 dated 6 July 2000.
18 Review Resolution, pp. 19-20.
19 Id. at 41.
20 Id. at 40-41, 44-45. Boldfacing in the original.
21 533 Phil. 796, 807-808 (2006). Italicization in the original.
22 582 Phil. 505, 518-520 (2008).
23 Santos v. COMELEC, 447 Phil. 760 (2003).
24 640 Phil. 620, 650-651 (2010).
25 Rollo (G.R. No. 209446 ), pp. 2550-2563.
26 Id. at 722.
27 Belita v. Sy, 788 Phil. 581, 588-589(2016); People v. Tibayan, 750 Phil. 910, 920(2015).
28 Rollo (G.R. No. 209424), p. 810.
29 Id. at 812.
30 Id. at 814.
31 People v. Espinosa, 731 Phil. 615, 627-628 (2014), citing Building Care Corp./Leopard Security & Investigation Agency v. Macaraeg, 700 Phil. 749, 755 (2012).
32 Prior to its deletion in the amendment, Section 4 of Rule 65 provides that "No extension of time to file the petition shall be granted except for the most compelling reason and in no case exceeding fifteen (15) days."
33 627 Phil. 341, 347-348 (2010).
34 In Castells v. Saudi Arabian Airlines, 716 Phil. 667, 673-674 (2013), the Court cited the case of Labao v. Flores, 649 Phil. 213, 222-223 (2010), for the list of exceptions to the strict application of procedural rules, thus:
(1) most persuasive and weighty reasons;
(2) to relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure;
(3) good faith of the defaulting party by immediately paying within a reasonable time from the time of default;
(4) the existence of special or compelling circumstances;
(5) the merits of the case;
(6) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules;
(7) a lack of any showing that the review sought is merely frivolous or dilatory;
(8) the other party will not be unjustly prejudiced thereby;
(9) fraud, accident, mistake or excusable negligence without appellant's fault;
(10) peculiar legal and equitable circumstances attendant to each case;
(11) in the name of substantial justice and fair play;
(12) importance of the issues involved; and
(13) exercise of sound discretion by the judge guided by all the attendant circumstances.
35 Philippine Bank of Communications v. Court of Appeals, G.R. No. 218901, 15 February 2017, 818 SCRA 68, citing Tanenglian v. Lorenzo, 573 Phil. 472 (2008).
36 Bases Conversion Devi. Authority v. Reyes, 711 Phil. 631, 643 (2013), citing Twin Towers Condominium Corp. v. Court of Appeals, 446 Phil. 280, 298-299 (2003).
37 Rollo (G.R. No. 208744), pp. 196-198.
38 Id. at 650-652.
39 Camanag v. Guerrero, 335 Phil. 945 (1997); Atty. Paderanga v. Hon. Drilon, 273 Phil. 290 (1991).
40 Domingo v. Sandiganbayan, 379 Phil. 708 (2000).
41 Samson v. Secretary Guingona, Jr., 401 Phil. 167 (2000); Guingona v. The City Fiscal of Manila, 222 Phil. 119 (1985).
42 273 Phil. 290, 296 (1991).
43 People v. Grey, 639 Phil. 535, 551 (2010), citing Brocka v. Ponce Enrife, 270 Phil. 271, 276-277 (1990). (Citations omitted)
44 Department of Justice v. Mislang, 791 Phil. 219(2016).
45 Id. at 228-229, 232.
46 Rollo (G.R. No. 209424), p. 32.
47 Id. at 459.
48 551 Phil. 273, 290-292 (2007).
49 217 Phil. 93, 102 (1984).
50 Rollo (G.R. No. 209424), pp. 1868-1882.
51 Id. at 271.
52 Id. at 1494-1495. The letter dated 28 December 2010 states: This refers to your request for authority to engage the services of external counsel who will handle the cases filed by or against Globe Asiatique Holdings Corp.
In view thereof, and pursuant to Office of the Government Corporate Counsel (OGCC) Memorandum Circular 1, Series of 2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated 29 August 1998, Home Development Mutual Fund (HDMF) is hereby authorized to engage the services of Raquel Wealth A. Taguian and Yorac Arroyo Chua Caedo & Coronel Law Firm to handle the aforesaid cases, subject to the control and supervision of the OGCC. This authority does not amount to an endorsement of the compensation of the lawyers to be engaged, which we leave to the sound discretion of management mindful of Commission on Audit rules and regulations.
x x x x
53 Id. at 1496-1497. The letter dated 28 December 2010 states:
This confirms and ratifies the engagement of external counsel for the handling of the cases filed by or against the Globe Asiatique Holdings Corporation, and such other cases that arose out of or in relation to the Globe Asiatique Corporation issues.
In view thereof, and pursuant to this Office's Memorandum Circular I, Series of 2002 in conjunction with Republic Act 3838 and Memorandum Circular 9 dated 29 August 1998, we confirm and ratify the engagement of Yorac Arroyo Chua Caedo & Coronel Law Firm to handle such cases, subject to the control and supervision of this Office. This authority does not amount to an endorsement of the compensation of the lawyers to be engaged, which we leave to the sound discretion of management mindful of Commission on Audit rules and regulations.
x x x x
54 Id. at 1493. The COA Certification states:
This is to certify that the Commission on Audit (COA) has concurred in the Retainer Agreement entered into by and between the Home Development Mutual Fund (HDMF) and Yorac Arroyo Chua Caedo & Coronel Law Firm, for the latter to provide legal services to the HDMF in connection with the cases filed by or against Globe Asiatique Realty Holdings Corporation, Mr. Delfin S. Lee, its officers, employees and agents, and such other cases that arose out of or in relation to the Globe Asiatique Realty Holdings Corporation issues.
55 Id. at 451-452.
56 Phil. Countryside Rural Bank (Liloan, Cebu), Inc. v. Toring, 603 Phil. 203 (2009).
57 YKR Corporation v. Philippine Agri-Business Center Corp., 745 Phil. 666, 685-686 (2014), citing Viajar v. Judge Estenzo, 178 Phil. 561, 573 (1979).
58 Phil. Countryside Rural Bank (Liloan. Cehu), Inc. v. Toring, supra note 56; Nocom v. Camerino, 598 Phil. 214 (2009).
59 Rollo (G.R. No. 209424), pp. 753-774.
60 Id. at 776-831.
61 Section 3.1. The DEVELOPER shall receive, evaluate, process and approve the housing loan applications of its member-buyers in accordance with the applicable Guidelines of the Pag-IBIG Housing Loan Program. The DEVELOPER shall likewise be responsible for the annotation of the Deeds of Assignment with Special Power of Attorney (DOA with SPA)/Loan and Mortgage Agreement (LMA) for accounts covered by the CTS and REM respectively, on the Individual Certificates of Title covering the house and lot units subject of the loan with the appropriate Register of Deeds (RD), and shall deliver the complete mortgage folders to Pag-IBIG Fund.
62 Section 7.1. LOAN EVALUATION - The DEVELOPER warrants that the member-borrowers and their respective housing loan applications have been properly evaluated and approved in accordance with the applicable Guidelines of the Pag-IBIG Housing Loan Program prior to their endorsement to Pag-IBIG Fund.
JULY 31, 2018
EN BANC
G.R. No. 205698 - HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, petitioner, v. CHRISTINA SAGUN, respondent.
G.R. No. 205780 - DEPARTMENT OF JUSTICE, represented by SEC. LEILA DE LIMA, STATE PROSECUTOR THEODORE M. VILLANUEVA, PROSECUTOR GENERAL CLARO A. ARELLANO, and the NATIONAL BUREAU OF INVESTIGATION (NBI), petitioners, v. CHRISTINA SAGUN, respondent.
G.R. No. 208744- DEPARTMENT OF JUSTICE, petitioner, v. DELFIN S. LEE, respondent.
G.R. No. 209424 - HOME DEVELOPMENT MUTUAL FUND (HDMF), petitioner, v. GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION, DELFIN S. LEE, in his capacity as the President of the Corporation, and TESSIE G. WANG, respondents.
G.R. No. 209446 - PEOPLE OF THE PHILIPPINES, petitioner, v. ALEX M. ALVAREZ, respondent.
G.R. No. 209489 - HOME DEVELOPMENT MUTUAL FUND (HDMF),petitioner, v. ATTY. ALEX M. ALVAREZ, respondent.
G.R. No. 209852 - HOME DEVELOPMENT MUTUAL FUND (HDMF), petitioner, v. DELFIN S. LEE, respondent.
G.R. No. 210095 - DEPARTMENT OF JUSTICE, petitioner, v. DELFIN S. LEE, respondent.
G.R. No. 210143 - PEOPLE OF THE PHILIPPINES, petitioner, v. DELFIN S. LEE, respondent.
G.R. No. 228452 - HOME DEVELOPMENT MUTUAL FUND (HDMF), petitioner, v. DEXTER L. LEE, respondent.
G.R. No. 228730 - PEOPLE OF THE PHILIPPINES, petitioner, v. DEXTER L. LEE, respondent.
G.R. No. 230680 - CRISTINA SALAGAN, petitioner, v. PEOPLE OF THE PHILIPPINES and HOME DEVELOPMENT MUTUAL FUND (HDMF), respondents.
DISSENTING OPINION
LEONEN, J.:
x - - - - - - - - - - - - - - - - - - - - - - - x
I join Senior Associate Justice Antonio T. Carpio in his dissent. I write separately to contribute to a more exhaustive understanding of syndicated estafa as defined by Presidential Decree No. 1689.
There was probable cause to file informations for syndicated estafa and to issue corresponding warrants of arrest against Delfin S. Lee (Delfin), Dexter L. Lee (Dexter), Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty. Alex M. Alvarez (Atty. Alvarez). Hence, it was error for the Court of Appeals to set aside the August 10, 2011 Review Resolution of the Department of Justice, to annul and set aside the May 22, 2012 and August 22, 2012 Resolutions penned by Judge Ma. Amifaith S. Fider-Reyes (Judge Fider-Reyes) of Branch 42, Regional Trial Court, San Fernando City, Pampanga in Criminal Case No. 18480, and, lastly, to lift, quash, and recall the warrants of arrest issued pursuant to Judge Fider-Reyes' resolutions.
I
I take exception to the ponencia's emphasis on the number of individuals who can be charged and how this number is supposedly determinative of the offense committed by Delfin, Dexter, Sagun, and Salagan. The ponencia explains how Atty. Alvarez should supposedly be excluded from the charge of estafa, 1 as "his act of notarizing various documents, . . . that were material for the processing and approval of the transactions, was insufficient to establish his having been part of the conspiracy."2 The ponencia notes that with Atty. Alvarez's exclusion, only four (4) individuals remain to be charged. It maintains that a case for syndicated estafa may not be prosecuted considering that those who remain could not be considered as a syndicate.3
Articles 315 and 316 of the Revised Penal Code penalize estafa and other forms of swindling, respectively.4 Presidential Decree No. 1689 deals with heavier penalties when the acts penalized by Articles 315 and 316 are "committed by a syndicate":
Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)'', or farmers' association, or of funds solicited by corporations/associations from the general public. When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos. 5
Thus, syndicated estafa exists if the following elements are present:
1) [E]stafa or other forms of swindling as defined in Articles 315 and 316 of the [Revised Penal Code] was committed; 2) the estafa or swindling was committed by a syndicate of five or more persons; and 3) the fraud resulted in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, "samahang nayon[s]," or farmers associations or of funds solicited by corporations/associations from the general public. "6
The recital of elements demonstrates that two (2) additional elements qualify swindling into syndicated estafa. The first is "commi[ssion] by a syndicate." The second is misappropriation. The object of this misappropriation, in turn, can be either of two (2) categories of funds. The first category is "moneys contributed by stockholders, or members of rural banks, cooperatives, 'samahang nayon(s)', or farmers['] associations." The second category is "funds solicited by corporations/associations from the general public."
Concerning the first additional element of "commi[ssion] by a syndicate," Section 1 of Presidential Decree No. 1689 proceeds to identify when a syndicate exists. There is a syndicate when there is a collective of five (5) or more individuals, the intent of which is the "carrying out [of] the unlawful or illegal act, transaction, enterprise or scheme."
While Section 1 specifies a minimum number of individuals acting out of a common design to defraud so that a syndicate may be deemed to exist, it does not specify the number of individuals who must be charged for syndicated estafa at any given time. At no point does Section 1 require a minimum of five (5) individuals to stand trial for syndicated estafa. Likewise, it does not state that, failing in any such threshold, prosecution cannot prosper.
Indeed, contingencies may make it so that even if five (5) or more individuals acted in concert to defraud, not everyone involved in the common scheme can stand trial. While some may have been brought into custody, others may remain at large. Some individuals who were part of the scheme may have predeceased the institution of a criminal action. Likewise, some conspirators may remain unidentified even when acts attributable to them have been pinpointed. Exigencies such as these cannot frustrate prosecution under Presidential Decree No. 1689. To hold otherwise would be to render Presidential Decree No. 1689 impotent. Prosecution can then be conveniently undermined by a numerical lacuna that is not the essence of an offense otherwise demonstrably committed.
What is critical is not the number of individuals actually available for or identified to stand trial, but a showing that a deceit mentioned in Articles 315 and/or 316 of the Revised Penal Code was committed by five (5) or more individuals acting in concert. For as long as this is shown, coupled with the requisite misappropriation, prosecution and conviction can proceed.
The primary task of investigators and prosecutors, then, is to demonstrate the fraudulent scheme employed by five (5) or more individuals. Once this is established, it is their task to demonstrate how an individual accused took part in effecting that scheme. When an individual's participation is ascertained, he or she may be penalized for syndicated estafa independently of his or her collaborators. Thus, an information may conceivably be brought against even just a single individual for as long that information makes averments on the scheme perpetrated by that person with at least four (4) other collaborators, as well as the nature of that person's participation in the scheme.
It is also not essential that an accused be formally named or identified as an affiliate such as by being a director, trustee, officer, stockholder, employee, functionary, member, or associate of the corporation or association used as an artifice for the fraudulent scheme. As with the inordinate fixation on the number of individuals being prosecuted, insisting on such an affiliation can also conveniently frustrate the ends of justice. A cabal of scammers can then nominally exclude one (1) of their ilk from their organized vehicle and already be beyond Presidential Decree No. 1689's reach, regardless of the excluded collaborator's actual participation in their fraudulent designs.
Presidential Decree No. 1689 contemplates not only corporations but also associations as avenues for misappropriation. Affiliation with corporations whether as a director, trustee, officer, stockholder, or member is carefully delineated by law. In contrast, associations and affiliations with them are amorphous. Any number of individuals can organize themselves into a collective. Their very act of coming together with an understanding to pursue a shared purpose suffices to make them an association. A regulatory body's official recognition of their juridical existence and their collective's competence to act as its own person is irrelevant.
Presidential Decree No. 1689's similar treatment of associations with corporations rebuffs the need for an accused's formally designated relationship with the organization which was used to facilitate the fraudulent scheme. The statutory inclusion of the term "association," which is without a specific restrictive legal definition unlike the term "corporation," manifests the law's intent to make as inclusive as practicable its application. It exhibits the law's intent to not otherwise be strangled by prohibitive technicalities on organizational membership.
II
Senior Associate Justice Carpio's dissent details how Atty. Alvarez should not be considered a mere notary public so detached from the fraudulent scheme that is subject of these consolidated petitions. Indeed, it would be foolhardy to discount the gravity of the offense committed by dwelling on Atty. Alvarez's nominal lack of "relat[ion] to Globe Asiatique either by employment or by ownership."7
The ponencia acknowledges that Atty. Alvarez was not affiliated with Globe Asiatique Realty Holdings Corporation (Globe Asiatique) as he was Horne Development Mutual Fund's employee and not Globe Asiatique 's employee or stockholder. Specifically, he was the Manager of Horne Development Mutual Fund's Foreclosure Departrnent.8 As Senior Associate Justice Carpio emphasizes, Atty. Alvarez's position at Horne Development Mutual Fund and his simultaneous "moonlighting as head of the legal department of Globe Asiatique,"9 at whose headquarters he even held office, incriminates, rather than exonerates, him.
Evidently, with his continuing employment at Home Development Mutual Fund, Atty. Alvarez could not be simultaneously employed by Globe Asiatique, let alone be formally declared the head of its legal department. This anomaly should not frustrate his liability alongside Delfin, Dexter, Sagun, and Salagan. If at all, it should aggravate his liability because knowing fully well that he was in no position to render services for Globe Asiatique, and that doing so amounted to a conflict of interest, Atty. Alvarez went ahead and did so anyway. His knowing notarization of documents concerning mortgages which he may himself foreclose shows malicious intent. Worse, his services for Globe Asiatique did not amount to innocuous, run of the mill tasks but were an integral component of the overarching fraudulent scheme. In Senior Associate Justice Carpio's words:
Any agreement between Globe Asiatique and HDMF would not have materialized if it were not for Globe Asiatique 's submission of mortgage documents notarized by Atty. Alvarez. Atty. Alvarez's participation in the entire scheme was a crucial and necessary step in Globe Asiatique's inducement of HDMF to release the loan proceeds to Globe Asiatique. 10
The ponencia's emphasis on how Atty. Alvarez should be segregated from Delfin, Dexter, Sagun, and Salagan is misplaced. His circumstances should not be used to reduce the persons accused to a number short of the threshold maintained by the ponencia. The absurdity of Atty. Alvarez's personal condition cannot conveniently deter prosecution for syndicated estafa.
III
Granting that Atty. Alvarez cannot be held liable as an integral cog to the uncovered fraudulent apparatus, his exclusion does not ipso facto negate the existence of a syndicate of at least five (5) individuals who worked to carry out an illegal scheme through which funds solicited from the general public were misappropriated. Even Atty. Alvarez's hypothetical exclusion does not negate syndicated estafa.
The fraudulent scheme uncovered in this case did not merely involve Delfin, Dexter, Sagun, Salagan, and Atty. Alvarez. A defining feature of the scheme was the use of "special buyers" who were induced by a fee to enlist for a Home Development Mutual Fund membership and then to lend their names and memberships to Globe Asiatique. It was Globe Asiatique's use of these spurious members' names and memberships which enabled it to siphon funds from Home Development Mutual Fund through fund releases by way of take-out of the special buyers' supposed housing loans. 11
Such an elaborate machination could not have been exclusively carried out by four (4) individuals. The plot's basic design demanded the involvement of persons other than Delfin and Dexter and high-level executives Sagun and Salagan. At the lowest rungs of the mechanism to effect the plot to involve special buyers were agents who recruited, paid, and induced each of the special buyers to enlist for Home Development Mutual Fund membership, and to allow their names and memberships to be used. At an intermediate level were officers who oversaw the operational aspects of the scheme.
Apart from the plot's basic configuration, the sheer scale to which it appears to have been effected also belies the exclusive involvement of four (4) individuals. As the information subject of Criminal Case No. 18480 underscored, "644 borrowers endorsed by [Globe Asiatique] are not genuine buyers of Xevera [H]omes while 802 are nowhere to be found; 3 buyers are already deceased; and 275 were not around during the visit, hence, establishing that all of them are fictitious buyers." 12 The carrying out of the scheme was simply too broad to have merely been the result of four (4) persons' exclusive handiwork.
The fraudulent scheme where at least five (5) individuals collaborated is clear to see. Atty. Alvarez's convenient dislocation from the ranks of Globe Asiatique's employees is too far-fetched to be indulged. But even if he were to be excluded, the operation of a fraudulent syndicate cannot be discounted. This Court should not render itself blind and condone a miscarriage of justice merely on account of a numerical artifice. Five (5) persons accused, minus one (1) absurdly discharged, do not erase the elaborate stratagem by a syndicate wherein Delfin, Dexter, Sagun, and Salagan are, thus far, the ones identified to have been on top, but which also indispensably involved many others.
IV
I also cannot agree to the assertion that there could not be syndicated estafa because "the association of respondents did not solicit funds from the general public"13 and that "it was ... not Globe Asiatique, that solicited funds from the public." 14
The ponencia reasons that it was not Globe Asiatique but Home Development Mutual Fund that solicited funds from the public. 15 It adds that "[t]he funds solicited by [Home Development Mutual Fund] from the public were in the nature of their contributions as members of [Home Development Mutual Fund], and had nothing to do with their being a stockholder or member of Globe Asiatique." 16 Thus, "the funds supposedly misappropriated did not belong to Globe Asiatique's stockholders or members, or to the general public, but to [Home Development Mutual Fund]." 17
The ponencia overemphasizes the technicality of Home Development Mutual Fund's separate and distinct juridical personality at the expense of a proper appreciation of the gravity of the offense involved.
Republic Act No. 9679, or the Home Development Mutual Fund Law of 2009, emphasizes the "provident character" of the Home Development Mutual Fund, thus:
Section 10. Provident Character. - The Fund shall be private in character, owned wholly by the members, administered in trust and applied exclusively for their benefit. All the personal and employer contributions shall be fully credited to each member, accounted for individually and transferable in case of change of employment. They shall earn dividends as may be provided for in the implementing rules. The said amounts shall constitute the provident fund of each member, to be paid to him, his estate or beneficiaries upon termination of membership, or from which peripheral benefits for the member may be drawn.
As a provident fund, Home Development Mutual Fund relies on the required remittance of savings by its members. Membership is either mandated or voluntary. Its mandated membership consists of all private individuals covered by the Social Security System, all public employees covered by the Government Service Insurance System, uniformed personnel in the Armed Forces of the Philippines, the Philippine National Police, the Bureau of Jail Management and Penology, the Bureau of Fire Protection, and all Filipinos employed by foreign employers regardless of their place of deployment. 18 Voluntary membership is open to Filipinos aged 18 to 65. 19
It is true that Home Development Mutual Fund has a personality distinct and separate from its members and exercises competencies independently of them. However, considering its provident character and its membership base, it is incorrect to say that the misappropriated funds in this case are Home Development Mutual Fund's alone and not the general public's. By Republic Act No. 9679's express language and Home Development l\1utual Fund's membership base, that is, practically the same as the general public, it is erroneous to insulate Globe Asiatique from the general public by hyperbolizing Home Development Mutual Fund's role as an intervening layer between them.
In asserting that Globe Asiatique neither solicited funds from the general public nor committed misappropriation, the ponencia similarly fails to account for how Globe Asiatique used and manipulated Home Development Mutual Fund. While it is true that the finds collected, and eventually misappropriated, from Home Development Mutual Fund members were in the nature of their contributions which did not accrue to Globe Asiatique, the essence of the fraudulent scheme was that Globe Asiatique used Home Development Mutual Fund as a medium for its pilferage.
The fraudulent scheme could not have been effected had Globe Asiatique not been enabled to act for and on behalf of Home Development Mutual Fund. The ponencia's own recital of facts acknowledges that under the Funding Commitment Agreements, Globe Asiatique pre-processed housing loans and even collected monthly amortizations on the loans obtained by its buyers. 20 Under its special buyers scheme, it even enticed non-members of Home Development Mutual Fund to avail of its membership.
Globe Asiatique's commission by Home Development Mutual Fund is precisely what enabled its fraudulent scheme. The machination of Delfin and his compatriots turned on Globe Asiatique's delegation to act for Home Development Mutual Fund. The ponencia ignores this devious agency and insists on Home Development Mutual Fund's distinct identity. As with its emphasis on the number of individuals charged, it again places a primacy on technicality at the expense of the essence of Presidential Decree No. 1689. Such disregard compels me to differ from its conclusions on the existence of probable cause to indict for syndicated estafa and to issue corresponding warrants of arrest for Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex M. Alvarez.
ACCORDINGLY, I vote to GRANT the petitions subject of G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, and 228730.
The October 5, 2012 Decision and February 11, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 121346, the October 3, 2013 Decision of the Court of Appeals in CA-GR. SP No. 127690, the November 7, 2013 Decision of the Court of Appeals in CA-G.R. SP No. 127553, and the November 16, 2016 Decision of the Court of Appeals in CA-G.R. SP No. 127554 must be REVERSED.
The warrants of arrest issued by Branch 42, Regional Trial Court, San Fernando City, Pampanga against Christina Sagun, Delfin S. Lee, Dexter L. Lee, and Atty. Alex Alvarez must be REINSTATED.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1 Ponencia, p. 38 and 44-45.
2 Id. at 44.
3 Id. at 36-40.
4 REV. PEN. CODE, arts. 315 and 3 l 6.
Article 315. Swindling (estafa)- Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prisi6n mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
(a) By altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration.
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
(c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or any third person.
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
(b) By altering the quality, fineness or weight of anything pertaining to his art or business.
(c) By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty.
(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.)
(e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like, without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at a hotel, inn, restaurant, boarding house, lodging house or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house, or apartment house after obtaining credit, food, refreshment, or accommodation therein without paying for his food, refreshment or accommodation. (As amended by Com. Act No. 157, enacted November 9, 1936.)
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign any document.
(b) By resorting to some fraudulent practice to insure success in a gambling game.
(c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers.
Article 316. Other forms of swindling. - The penalty of arresto mayor in its minimum and medium periods and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon:
1. Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same.
2. Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded.
3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person.
4. Any person who, to the prejudice of another, shall execute any fictitious contract.
5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor.
6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation.
5 Pres. Decree No. 1689 (1980), sec. l.
6 Belita v. Sy, 788 Phil. 580, 589 (2016) [Per J. Perez, Third Division], citing Hao v. People, 743 Phil. 204 [Per .J. Brion, Second Division].
7 Ponencia, p. 38.
8 Id.
9 Dissenting Opinion, J. Carpio, p. 27.
10 Id.
11 Ponencia, pp. 11-13.
12 Id. at 12.
13 Id. at 38.
14 Id.
15 Id.
16 Id. at 39.
17 Id.
18 Per Home Development Mutual Fund's official website <http://www.pagibigfund.gov.ph>, mandatory membership is for:
* All employees who are or ought to be covered by the Social Security System (SSS), provided that actual membership in the SSS shall not be a condition precedent to the mandatory coverage in the Fund. It shall include, but are not limited to:
o A private employee, whether permanent, temporary, or provisional who is not over sixty (60) years old;
o A household helper earning at least ₱1,000.00 a month. A household helper is any person who renders domestic services exclusively to a household such as a driver, gardener, cook, governess, and other similar occupations;
o A Filipino seafarer upon the signing of the standard contract of employment between the seafarer and the manning agency, which together with the foreign ship owner, acts as the employer;
o A self-employed person regardless of trade, business or occupation, with an income of at least ₱1,000.00 a month and not over sixty (60) years old;
o An expatriate who is not more than sixty (60) years old and is compulsorily covered by the Social Security System (SSS), regardless of citizenship, nature and duration of employment, and the manner by which the compensation is paid. In the absence of an explicit exemption from SSS coverage, the said expatriate, upon assumption of office, shall be covered by the Fund.
An expatriate shall refer to a citizen of another country who is living and working in the Philippines.
- All employees who are subject to mandatory coverage by the Government Service Insurance System (GSIS), regardless of their status of appointment, including members of the judiciary and constitutional commissions;
- Uniformed members of the Armed Forces of the Philippines, the Bureau of Fire Protection, the Bureau of Jail Management and Penology, and the Philippines National Police;
- Filipinos employed by foreign-based employers, whether they are deployed here or abroad or a combination thereof.
19 Per Home Development Mutual Fund’s official website http://www.pagibigfund.gov.ph, voluntary membership is for:
An individual at least 18 years old but not more than 65 years old may register with the Fund under voluntary membership. However, said individual shall be required to comply with the set of rules and regulations for Pag-IBIG members including the amount of contribution and schedule of payment. In addition, they shall be subject to the eligibility requirements in the event of availment of loans and other programs/benefits offered by the Fund.
The following shall be allowed to apply for voluntary membership:
- Non-working spouse who devote full time to managing the household and family affairs, unless they also engage in another vocation or employment which is subject to mandatory coverage, provided the employed spouse is a registered Pag-IBIG member and consents to the Fund membership of the non-working spouse;
- Filipino employees of foreign government or international organization, or their wholly-owned instrumentality based in the Philippines. In the absence of an administrative agreement with the Fund;
- Employees of an employer who is granted a waiver or suspension of coverage by the Fund under RA 9679;
- Leaders and members of religious groups;
- A member separated from employment, local or abroad, or ceased to be self-employed but would like to continue paying his/her personal contribution. Such member may be a pensioner, investor, or any other individual with passive income or allowances;
- Public officials or employees who are not covered by the GSIS such as Barangay Officials, including Barangay Chairmen, Barangay Council Members. Chairmen of the Barangay Sangguniang Kabataan, and Barangay Secretaries and Treasurers;
- Such other earning individuals/groups as may be determined by the Beard by rules and regulations.
20 Ponencia, p. 5.
JULY 31, 2018
EN BANC
G.R. No. 205698 - HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, Petitioner versus CHRISTINA SAGUN, Respondent.
G.R. No. 205780 - DEPARTMENT OF JUSTICE, represented by SECRETARY LEILA DE LIMA, STATE PROSECUTOR THEODORE M. VILLANUEVA, and PROSECUTOR GENERAL CLARO A. ARELLANO and THE NATIONAL BUREAU OF INVESTIGATION, Petitioners versus CHRISTINA SAGUN, Respondent.
G.R. No. 208744 - DEPARTMENT OF JUSTICE, Petitioner versus DELFIN LEE, Respondent.
G.R. No. 209424 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner versus GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION, DELFIN S. LEE, in his capacity as the President of the Corporation and TESSIE G. WANG, Respondents.
G.R. No. 209446 - PEOPLE OF THE PHILIPPINES, Petitioner versus ALEX M. ALVAREZ, Respondent.
G.R. No. 209489 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner versus ALEX M. ALVAREZ, Respondent.
G.R. No. 209852 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner versus DELFIN S. LEE, Respondent.
G.R. No. 210095 - DEPARTMENT OF JUSTICE, Petitioner versus DELFIN S. LEE, Respondent.
G.R. No. 210143 - PEOPLE OF THE PHILIPPINES, Petitioner versus DELFIN S. LEE, Respondent.
G.R. No. 228452 - HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner versus DEXTER L. LEE, Respondent.
G.R. No. 228730 - PEOPLE OF THE PHILIPPINES, Petitioner versus DEXTER L. LEE, Respondent.
G.R. No. 230680 - CHRISTINA SALAGAN, Petitioner versus PEOPLE OF THE PHILIPPINES and HOME DEVELOPMENT MUTUAL FUND (HDMF), Respondents.
SEPARATE OPINION
TIJAM, J.:
x - - - - - - - - - - - - - - - - - - - - - - - x
In 2008, Globe Asiatique Realty Holdings Corporation (GA), through its president Delfin Lee, entered into Funding Commitment Agreements (FCA) with Home Development Mutual Fund (HDMF) wherein it represented having interested buyers in its Xevera Projects in Pampanga. Under the arrangement, GA's supposedly existing buyers would be the loan applicants. GA will pre-process the loan applications and in case of default in the amortization, GA would buy back the loan accounts. This was followed by a second FCA, where the borrowers would be composed of Special Other Working Group (OWG) or those HDMF members who are not formally employed. In 2009, GA and HDMF executed a Memorandum of Agreement (MOA) for an additional funding commitment line. More FCAs were executed, reaching an aggregate amount of ₱7,007,806,000.00 released to GA.
HDMF subsequently discovered that some supposed borrowers under the OWG were not aware of the loans they supposedly obtained and that some borrowers were neither members of HDMF nor qualified to avail of housing loan. Consequently, HDMF revoked the authority of GA under the FCA, suspended all take-outs for new housing loans, required the buy-back of the 701 fraudulent accounts, and cancelled the release of fund to GA.
HDMF subsequently discovered that some supposed borrowers under the OWG were not aware of the loans they supposedly obtained and that some borrowers were neither members of HDMF nor qualified to avail of housing loan. Consequently, HDMF revoked the authority of GA under the FCA, suspended all take-outs for new housing loans, required the buy-back of the 701 fraudulent accounts, and cancelled the release of fund to GA.
These events led to:
(a) In October 2010, HDMF, through its officer-in-charge Faria, filed a complaint for syndicated estafa against GA's officers Delfin Lee and several others [ 1st DOJ Complaint].
(b) In November 2010, GA and Delfin Lee filed a complaint for specific performance against HDMF before Regional Trial Court (RTC) of Makati [Civil Case]. They sought to compel HDMF to accept the replacements they proposed in lieu of the buyers who became delinquent in their amortizations.
(c) 2nd, 3rd and 4th Department of Justice (DOJ) criminal complaints against respondents were filed.
1st DOJ Complaint:
The DOJ issued its Review Resolution recommending the filing of estafa against Delfin Lee, Christina Sagun (Sagun), Christina Salagan (Salagan), Dexter Lee and Atty. Alex M. Alvarez (Atty. Alvarez) with no bail.
Sagun filed a certiorari petition with the Court of Appeals (CA) while Atty. Alvarez filed his injunction petition with RTC Caloocan to enjoin DOJ from filing the information.
The CA partially granted Sagun's petition. It held that Sagun's functions were limited to collation of documents. It dismissed the complaint as against Sagun and ordered the quashal of the arrest warrant issued against her.
On the other hand, GA clients, claiming to be victims of double sale made by GA, also filed a complaint for syndicated estafa against respondents. [2nd DOJ Complaint]
Delfin Lee filed an injunction petition with RTC Pasig to enjoin the DOJ from proceeding with the 2nct DOJ Complaint on the ground that the Civil Case for specific performance case constitutes a prejudicial question.
The RTC Pasig issued Temporary Restraining Order (TRO) and Writ of Preliminary Injunction (WPI). DOJ filed a certiorari petition with CA. CA granted DOJ certiorari petition. Delfin Lee appealed to Us. We denied appeal which became final.
DOJ thus filed criminal case for syndicated estafa against Delfin Lee, Dexter Lee, Sagun, Salagan and Atty. Alvarez with the RTC Pampanga.
The RTC Pampanga found probable cause for syndicated estafa and ordered the issuance of warrants of arrest.1a⍵⍴h!1
Delfin Lee, Dexter Lee and Salagan moved for reconsideration. Atty. Alvarez also moved for reconsideration.
Pending resolution of his motion for reconsideration, Delfin Lee filed a certiorari petition with the CA. Atty. Alvarez, Dexter Lee and Salagan also filed their respective certiorari petitions with the CA.
The CA partially granted Delfin Lee's and Atty. Alvarez's petition and quashed the arrest warrants issued against them. The CA dismissed Salagan's petition.
Hence, the petitions (People v. Alvarez, G.R. No. 209446; HDMF v. Alvarez, G.R. No. 209489; HDMF v. Delfin Lee, G.R. No. 209852; People v. Delfin Lee, G.R. No. 210143; People v. Dexter Lee, G.R. No. 228730; HDMF v. Dexter Lee, G.R. No. 228452; and Salagan v. People and HDMF, G.R. No. 230680).
Civil Case for specific performance:
GA and Delfin Lee filed a complaint for specific performance and damages, seeking to compel HDMF to accept the replacements they had proposed in lieu of the buyers/borrowers who had become delinquent in their amortization and asserting that HDMF's inaction to accept the replacement forced GA to default on its obligations under the MOA and FCAs, against HDMF.
The RTC Makati rendered a summary judgment in favor of GA and Delfin Lee.
Faria and Atty. Berberabe's motion for reconsideration filed by the Yorac Law Firm was denied due to the latter's lack of authority from HDMF. Supposedly, HDMF itself did not moved for reconsideration.
HDMF filed its certiorari petition with the CA.
The CA dismissed HDMF petition. In ruling so, the CA held that HDMF availed of the wrong remedy to assail a summary judgment and that the certiorari petition was not filed under the authority of the OGCC.
Hence, the petition (HDMF v. GA, G.R. No. 209424).
2nd, 3rd and 4th DOJ complaints:
To enjoin the 2nd, 3rd, and 4th DOJ complaints, Delfin Lee prayed for the issuance of a TRO with the RTC Pasig.
The RTC Pasig issued TRO and WPI against the conduct of the preliminary investigation in the 2nd, 3rd and 4th DOJ Complaints. It held that the summary judgment rendered by the RTC Makati effectively removed the element of damage in the criminal complaints.
DOJ filed certiorari petition with the CA, but denied the petition for having been filed out of time.
Hence, the petitions (DOJ v. Del.fin Lee, G.R. No. 208744; DOJ v. Del.fin Lee, G.R. No. 210095).
I concur with the ponencia ordering the formal amendment of the Information from syndicated estafa to simple estafa and that the arrest warrants remain valid.
To determine if the first paragraph of Section 1 of Presidential Decree (P.D.) No. 1689 applies, two questions must be determined: first, whether HDMF funds may be the subject of syndicated estafa; and second, whether respondents, as GA officials, fall under the definition of who may commit syndicated estafa.
As to the first question, the HDMF funds may be the subject of syndicated estafa.
Under paragraph 1 of Section 1, P.D. No. 1689, the funds misappropriated must be:
1) moneys contributed by stockholders or members of rural banks, cooperative, samahang nayons or farmers' associations, or
2) funds solicited from the general public.
Section 10 of Republic Act (R.A) No. 9679 or the HDMF Law of 2009 describes the HDMF fund as "private in character, owned wholly by the members, administered in trust and applied exclusively for their benefit." The personal and employer contributions are to be fully credited to each member and shall earn dividends. The fund also constitutes as a provident fund of each member, to be paid upon termination of membership. In other words, HDMF funds are funds held in trust for the member and are provident funds to be paid to the member, or his estate or beneficiaries, upon termination of his membership. As in the nature of provident funds, the HDMF funds operate as a savings scheme consisting of contributions from the members in monetary form which, in turn, earns dividends, may be used as a loan facility and provides supplementary welfare benefit to members. It is akin to funds held by banks, which is still wholly owned by the depositor but is loaned to the bank which the latter may use/invest and thus earns interest for the depositor. In other words, HDMF funds may thus properly be regarded as moneys contributed by HDMF members which may be thesubject of syndicated estafa.
Nevertheless, as to the second question, the respondents GA officials do not fall under the definition of who may commit syndicated estafa. Jurisprudence, as it stands, particularly in Galvez, et al. v. Court of Appeals, et al., 1 requires that the syndicate must have used the association that they manage to defraud the general public of the funds contributed to the association, to wit:
[W]e note that the swindling syndicate used the association that they manage to defraud the general public of funds contributed to the association. Indeed, Section 1 of Presidential Decree No. 1689 speaks of a syndicate formed with the intention of carrying out the unlawful scheme for the misappropriation of the money contributed by the members of the association. In other words, only those who formed [or] manage associations that receive contributions from the general public who misappropriated the contributions can commit syndicated estafa. 2
Otherwise stated, the syndicate must have used the rural banks, cooperative, samahang nayons or farmers' associations they formed, owned, or managed to misapropriate the moneys contributed by their stockholders or members, or the syndicate must have used the corporation or association they formed, owned, or managed to misappropriate the funds it solicited from the general public.
Here, the GA officials admittedly did not form, own or manage HDMF. It was neither alleged in the Information that the GA officials used HDMF to defraud the general public. Since it was HDMF (the "association" holding the moneys contributed by its members) which is the victim and the juridical person used by the syndicate to defraud, P.D. No. 1689 does not apply.
Finally, independently of whether the threshold number of accused, i.e., five, is met (on whether Atty. Alvarez should properly be included or not), the fact remains that four out of the five accused are neither owners nor employees of HDMF. This places the instant case outside the scope of P.D. No. 1689.
Since the elements of simple estafa appear to be present, respondents, including Atty. Alvarez of the HDMF, should be charged of simple estafa. The arrest warrants against them stand, and if quashed, should be reinstated.
I concur with ponencia reversing the CA Decision denying HDMF's certiorari petition against RTC Makati's summary judgment but, instead, of remanding to CA, the case should be remanded to RTC Makati for disposition on the merits.
The RTC Makati gravely abused its discretion when it rendered a summary judgment in the Civil Case for specific performance when it actually deemed that the issue as to damages necessitates further proceedings.
As suggested by Justice Estela M. Perlas-Bernabe, there is no need to remand the case to the CA to determine if the RTC Makati gravely abused its discretion especially so when proper evaluation of the merits may be had as when copies of various pleadings and documents are in possession of the Court. Instead, the case should be remanded to RTC Makati for further proceedings.
The Court's ruling charging respondents of simple estafa and affirming the validity of the arrest warrants does not pre-empt nor render moot the Civil Case for specific performance. Suffice to say that the instant petitions deal with the determination of the probable guilt of respondents for the crime of simple estafa; while the Civil Case simply determines contractual breach.
Under these premises, I vote as follows:
(1) The petitions in G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452, 228730 and 230680 should be PARTIALLY GRANTED in that the Department of Justice is DIRECTED to amend the Information in Criminal Case No. 18480 so as to charge respondents for simple estafa. The warrants of arrest issued REMAIN VALID;
(2) The petition in G.R. No. 209424 should be GRANTED. The Decision dated October 7, 2013 of the Court of Appeals in CAG. R. SP No. 128262, affirming the Resolutions dated January 30, 2012 and December 11, 2012 of the Regional Trial Court of Makati, Branch 58 in Civil Case No. 10-1120 should be REVERSED and SET ASIDE. A new one should be entered directing the REMAND of the case to RTC Makati for disposition on the merits;
(3) The petitions in G.R. Nos. 208744 and 210095 should be GRANTED, since the writ of preliminary injunction issued by the Regional Trial Court of Pasig City, Branch 167, which enjoined the preliminary investigation for the second, third and fourth criminal complaints filed against respondents was tainted with grave abuse of discretion amounting to lack of jurisdiction.
NOEL GIMENEZ TIJAM
Associate Justice
Footnotes
1 704 Phil. 463 (2013).
2 Id. at 473.
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