Ombudsman Samuel R. Martires said that based on evidence gathered and evaluated, only graft charges, not plunder, can be filed against government officials and executives of Pharmally Pharmaceutical Corporation in the procurement of P4.165 billion worth of Covid-19 test kits in 2020.

In a telephone conversation with journalists on Monday afternoon, Aug. 28, Martires explained that the pieces of evidence merely point to graft and the “requirements” needed to file a plunder case have not been met.

The Office of the Ombudsman (OMB) is set to file before the Sandiganbayan criminal charges against former Department of Budget and Management (DBM) Undersecretary Lloyd Christopher A. Lao, Overall Deputy Ombudsman Warren Rex H. Liong, DBM Procurement Management Officer Paul Jasper V. De Guzman, and five officials of Pharmally Pharmaceutical over the P4.165 billion procurement of test kits.

The resolution signed by Martires stated that Lao, Liong, and De Guzman will be charged with violations of Section 3(e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, together with Pharmally's Twinkle Dargani, Mohit Dargani, Linconn Ong, Justine Garado, and Huang Tzu Yen.

One graft charge will be filed against DBM Procurement Service Director IV Christine Marie L. Suntay, Procurement Management Officer V Webster Laurenana, employees August M. Ylagan and Jasonmer L. Uayan, and Pharmally's Krizle Grace Mago.

In a separate resolution, Ombudsman Martires found Lao, Liong, De Guzman, and Laurenana guilty of grave misconduct, gross neglect of duty, serious dishonesty, and conduct prejudicial to the best interest of the service.

They were imposed the penalty of dismissal from the service with forfeiture of all their retirement benefits and perpetual disqualification for re-employment in the government.

On the other hand, Ylagan, Uayan, and Suntay were found guilty of gross neglect of duty and conduct prejudicial to the best interest of the service. They were imposed the penalty of dismissal from service with forfeiture of all retirement benefits and perpetual disqualification for re-employment in the government service.

In the event that the penalty of dismissal can no longer be enforced, their penalty should be converted into a fine equivalent to their salary for one year, payable to the Office of the Ombudsman.

Meanwhile, Department of Health (DOH) Assistant Secretary for Health, Public Services Team Nestor F. Santiago was found guilty of simple neglect of duty and imposed a penalty of fine equivalent to one month of his salary.

On why only graft instead of plunder charge could be filed, Martires said it is a misconception that any crime involving P50 million and above should automatically be filed as plunder.

Martires said that “the law on plunder requires that a particular public officer must be identified as the one who amassed, acquired, or accumulated ill-gotten wealth.”

In the Pharmally case, only two high-ranking officials were identified -- Lao and Liong. "Did they amass it by themselves or was it in connivance with other people?" were the questions asked.  But Martires said there is no evidence showing if it was Lao or Liong who accumulated the ill-gotten wealth.

"Ang maliwanag sa (What is clear from the) records is that PS-DBM or some officials of PS-DBM favored Pharmally," he said. Martires explained that there is actually no issue of losing government funds or overpricing.

"Of the money that the government spent -- P4.165 billion for the payment of test kits -- there is nothing to show na may (that there is) overpricing, na nalugi ang government (that the government suffered losses). Wala eh (There is nothing)," he said.

"Nag deliver ng test kits ang Pharmally. Ang issue lang dito actually is the favor that was given to Pharmally, (Pharmally delivered the test kits. The only issue here is the favor given to Pharmally)," he added.

Martires admitted that they went back and forth whether or not to charge them with graft or plunder. But ultimately, the evidence on record all pointed to graft, he said.

Should evidence come to light in the future that would pin down the accused on plunder charge, Martires said the OMB will make amendments in the case.

"If one of the accused will turn state witness... then we might reconsider conducting another preliminary investigation and amending the information. Yes, why not?" he said.

For now, he said, the OMB will proceed with filing the graft case before the Sandiganbayan since they do not want to risk losing the case over inordinate delay.

At the same time, Martires said that there is still an ongoing investigation on Pharmally since the government also procured face masks and face shields from the company.