The Supreme Court (SC) has affirmed the 2011 Sandiganbayan decision that dismissed the plunder case filed against several Department of Finance (DOF) officials and businessmen in connection with alleged irregularities in the grant of P73.7 million in tax credit certificates (TCCs) which were issued for tax overpayments.
Upheld was the dismissal of plunder, a non-bailable offense, filed by the Office of the Ombudsman (OMB) in 2009 against Antonio A. Belicena, DOF assistant secretary and executive director of the One-Stop Inter-Agency Tax Credit and Drawback Center; Uldarico P. Andutan Jr., deputy executive director; Asuncion M. Magdaet, reviewer; and Rowena P. Malonzo, tax specialist.
Also affirmed was the dismissal of the case against spouses Faustino Chingkoe and Gloria Chingkoe, owners of Filstar Textile Industrial Corporation (Filstar); Grace Chingkoe, corporate secretary and co-owner of Filstar, and Catalina Aranas Bautista, Filstar representative.
The SC resolution which was made public last Sept. 29 denied the petition filed by OMB.
In filing the case, the OMB alleged that the documents submitted by Filstar to support its application for TCCs were fake and spurious. Thus, the OMB claimed that the transfer of the TCCs and their subsequent use were invalid and illegal.
On April 3, 2009, the Sandiganbayan found probable cause against all the respondents and issued an arrest order against them.
Faustino filed a motion to reconsider the anti-graft court’s ruling. It was denied.
On Sept. 13, 2010, Faustino, now joined by his wife Gloria, filed a motion to recall arrest warrant. They told the Sandiganbayan that indispensable to the crime of plunder is that a public officer amasses, accumulates or acquires ill-gotten wealth.
They also pointed out that the crime of plunder is committed by public officers and that unless the public officer accused of plunder, has himself acquired ill-gotten wealth, no person could have connived with him in the commission of the said crime.
In granting their motion to recall the arrest order, the Sandiganbayan ruled that based on the evidence, none of the public officers charged amassed, accumulated, and acquired ill-gotten wealth to the tune of P50 million, the aggregate amount in plunder cases.
What the OMB alleged, the Sandiganbayan said, was that the DOF officials conspired with spouses Chingkoe and the other private individuals in the issuance of TCCs which were later on passed to other companies for valuable consideration.
The Sandiganbayan ruled that the documents presented by the OMB on the assignment and conversion of the TCCs failed to prove that the monetary value of the TCCs landed in the pockets of any public officer.
It said that conspiracy alone cannot prove that any of the public officers was unjustly enriched as it pointed out that in plunder, there must be proof that a public officer unjustly enriched himself to the tune of at least P50 million without which there can be no plunder.
The OMB elevated the case to the SC. Among other allegations, the OMB told the SC that the Sandiganbayan did not appreciate the totality of its evidence, particularly the different irregularities committed in the issuance and utilization of the TCCs.
It said that the totality of evidence, on top of the fact that the DOF officials cooperated in the pilfering of public funds, showed the existence of the conspiracy to commit plunder.
Denying OMB’s petition, the SC said:
“A review of the records of the case would show that petitioner (OMB) had no case for plunder against all of the respondents (Belicena and others). The Investigation Report merely concluded that public respondents herein, in their respective capacities, irregularly approved the issuance of the TCCs to private respondents in the aggregate amount of P73,762,618, and thereafter allowing their subsequent illegal transfer.
“Said report failed to establish the fact that anyone of public respondents had accumulated or acquired ill-gotten wealth of any amount. It merely claimed that public respondents, in conspiracy with private respondents, defrauded the government by committing tax credit scam.
“Plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth in the aggregate amount or total value of at least P50 million and the identification in the information of such public official as the main plunderer among the several individuals thus charged is logically necessary under the law itself (citing a previous ruling).
“In the instant case, there were four public officials accused of amassing, accumulating and/or acquiring ill-gotten wealth aggregating to P73,762,618, but the information against the respondents was silent on who the main plunderer was. Petitioner insists that respondents committed acts showing the existence of an implied conspiracy among themselves, thereby making all of them the main plunderers.
“There was no proof that any of public respondents amassed, or accumulated, or acquired ill-gotten wealth of at least PS0 million.
“It must be remembered that plunder is a crime that only a public official can commit, the main plunderer could not be a private individual. He may be charged as co-conspirator, but without a main plunderer named, he is co-conspirator to no one.
“The ill-gotten wealth of at least P50 million must accrue to someone and he must be so positioned as to cause the accrual to himself. It is therefore apparent that the Sandiganbayan properly set aside the warrant of arrest and ruled that there was lack of probable cause to hold respondents liable for plunder.
“Notably, conviction for plunder carries with it the penalty of capital punishment; for this reason, more process is due, not less.
“When a person's life interest -- protected by the life, liberty, and property language recognized in the due process clause -- is at stake in the proceeding, all measures must be taken to ensure the protection of those fundamental rights.
“WHEREFORE, the instant petition is DENIED. The Resolution dated March 9, 2011 of the Sandiganbayan in Crim. Case No. SB-09-CRM-0078 is AFFIRMED.”