FIRST DIVISION
FRANCISCO
ACEJAS III,
Petitioner, Present:
Panganiban,
CJ,
Chairman,
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo,
Sr., and
Chico-Nazario,
JJ
PEOPLE OF THE
Respondent.
x -- -- -- --
-- -- -- -- -- -- -- -- -- -- -- -- x
VLADIMIR S. HERNANDEZ, G.R.
No. 156891
Petitioner,
- versus -
Promulgated:
PEOPLE OF THE
Respondent.
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
PANGANIBAN, CJ:
T
|
Before us
are consolidated Petitions for Review[1]
assailing the
Vladimir S.
Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas III
and Jose P. Victoriano were charged on
“That on or about January
12, 1994, or sometime prior thereto in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused
VLADIMIR S. HERNANDEZ and VICTOR CONANAN, being then employed both as
Immigration officers of the Bureau of Immigration and Deportation, Intramuros,
Manila, hence are public officers, taking advantage of their official positions
and committing the offense in relation to office, conspiring and confederating
with Senior Police Officer 3 EXPEDITO S. PERLAS of the Western Police District
Command, Manila, together with co-accused Atty. FRANCISCO SB. ACEJAS III, of
the LUCENARIO, MARGATE, MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused
JOSE P. VICTORIANO, a private individual, did then and there, willfully,
unlawfully and feloniously demand, ask, and/or extort One Million (P1,000,000.00)
PESOS from the spouses BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and
FILOMENO PELINGON, JR., in exchange for the return of the passport of said
Japanese Takao Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez
and out of said demand, the complainants Bethel Grace Pelingon, Takao Aoyagi
and Filomeno Pelingon, Jr. produced, gave and delivered the sum of Twenty Five
Thousand (P25,000.00) Pesos in marked money to the above-named accused
at a designated place at the Coffee Shop, Ground Floor, Diamond Hotel, Ermita,
Manila, causing damage to the said complainants in the aforesaid amount of P25,000.00,
and to the prejudice of government service.”[5]
After
trial, all the accused -- except Victoriano -- were
convicted. The challenged Decision
disposed as follows:
“WHEREFORE, premises considered,
accused Vladimir S. Hernandez, Victor D. Conanan, Expedito S. Perlas and
Francisco SB. Acejas III are hereby found GUILTY beyond reasonable doubt of the
crime of Direct Bribery, and are sentenced to suffer the indeterminate penalty
of four (4) years, nine (9) months and ten (10) days of prision correccional,
as minimum, to seven (7) years and four (4) months of prision mayor, as
maximum, and to pay a fine of three million pesos (P3,000,000.00). Accused Vladimir S. Hernandez and Victor D.
Conanan shall also suffer the penalty of special temporary
disqualification. Costs against the
accused.
“On ground of
reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of the crime
charged. The surety bond he posted for
his provisional liberty is cancelled.
The Hold Departure Order against him embodied in this Court’s Order
dated
The first
Resolution acquitted Conanan and denied reconsideration of the other accused.
The second Resolution denied Petitioner Acejas’
Motion for New Trial.
Hence,
petitioners now seek recourse in this Court.[7]
The facts[8]
are narrated by the Sandiganbayan as follows:
“At around
“To prove that he had done
nothing wrong, Takao Aoyagi showed his passport to Hernandez who issued an
undertaking (Exh. ‘B’) which Aoyagi signed.
The undertaking stated that Takao Aoyagi promised to appear in an
investigation at the BID on
“On
“As advised by Atty. Lucenario, Takao Aoyagi did not appear
before the BID. Instead, Atty. Rufino M.
Margate of the Lucenario Law Firm filed with the BID an Entry of Appearance
(Exh. ‘6’ – Acejas). Atty. Margate
requested for copies of any complaint-affidavit against Takao Aoyagi and asked
what the ground was for the confiscation of x
x x Aoyagi’s passport.
“Hernandez prepared a Progress Report (Exh. ‘5’ –
Hernandez) which was submitted to Ponciano M. Ortiz, the Chief of Operations
and Intelligence Division of the BID.
Ortiz recommended that Takao Aoyagi, who was reportedly a Yakuza and a
drug dependent, be placed under custodial investigation.
“In the evening of
“In the morning of P40,000.00, P25,000 of which
is 50% of the acceptance fee, and the P15,000.00 is for filing/docket
fee (Exh. ‘O’). The Aoyagis were able to
leave only in the afternoon as the morning flight was postponed.
“On December 24, 1993, while attending a family reunion,
Bethel Grace Pelingon-Aoyagi informed her brother, Filomeno ‘Jun’ Pelingon,
Jr., about her husband’s passport.
“On
“On
“Another meeting was arranged at the Manila Nikko Hotel in
“On P1 million for the return of Takao Aoyagi’s passport, Jun
Pelingon called up Commissioner Respicio. The latter referred him to Atty.
Angelica Somera, an NBI Agent detailed at the BID. It was Atty. Carlos Saunar, also of the NBI,
and Atty. Somera who arranged the entrapment operation.
“On
Version of the Prosecution
Testifying
for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno “Jun” Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]
The prosecution evidence
showed that it was during a meeting on January 5, 1994, when P1 million as consideration
for the passport was demanded. Conanan averred that Aoyagi was a drug trafficker and
Yakuza member. The money was to be used
to settle the alleged “problem” and to facilitate the processing of a permanent
visa. When Pelingon negotiated to lower
the amount demanded, Conanan stated that there were many of them in the Bureau
of Immigration and Deportation (BID).[12]
During the
second meeting held at Hotel Nikko, Pelingon was informed that the press and
government enforcers were after Aoyagi.
Hernandez asked for a partial payment of P300,000,
but Pelingon said that the whole amount would be given at just one time to
avoid another meeting.[13]
After
talking to Commissioner Respicio on
Regarding
the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG)
adds the following facts:
“1.2. On P1 million lawsuit against the BID agents who confiscated the passport
of Takao Aoyagi. [Acejas] showed
Pelingon several papers, which allegedly were in connection with the intended
lawsuit. However, when Hernandez and
Conanan arrived at the Aristocrat Restaurant, [Acejas] never mentioned to the
BID agents the P1 million lawsuit.
[Acejas] just hid the papers he earlier showed to Pelingon inside his
[Acejas’] bag.
“1.3. [Acejas] was present when Hernandez proposed
that Takao Aoyagi pay the amount of P1 million in exchange for the help
he would extend to him (Takao) in securing a permanent visa in the
Philippines. [Acejas], who was Aoyagi’s
lawyer, did nothing.
“1.4. On P300,000.00. Pelingon however, assured the group that
Takao Aoyagi would pay in full the amount of P1 million so as not to set
another meeting date. [Acejas] kept
quiet throughout the negotiations.
x x x x x x x
x x
“1.5.a. [Acejas] was present during the entrapment
that took place at the Diamond Hotel.
Hernandez handed the passport to [Acejas], who handed it then to Perlas
and thereafter to Takao Aoyagi. After
Takao Aoyagi went over his confiscated passport, Bethel Grace handed to
Hernandez the envelope[15]
containing the supposed P1 million.
Hernandez refused and motioned that [Acejas] be the one to receive
it. [Acejas] willingly got the envelope
and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagi’s pass- port,
he reminded the group of their earlier agreement of ‘kaliwaan’, i.e., that
after the passport is released, the Aoyagis should give the P1 million.”[16]
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas,
Francisco SB. Acejas III, Victor D. Conanan and
Ponciano M. Ortiz testified for the defense.[17]
To the
Sandiganbayan’s narration, Hernandez adds:
“6. x
x x [Hernandez], an intelligence agent of the
Bureau of Immigration and Deportation (BID), went to the house of Private
Respondents Takao and Bethel Grace Aoyagi to enforce and serve a Mission Order
issued and assigned to him by BID Commissioner Zafiro Respicio on December 13,
1993, for the arrest of Takao Aoyagi.
“7. When Bethel Grace showed [Hernandez] her husband’s passport,
[Hernandez] found out that the latter’s [authority] to stay had already been
duly extended. He invited private
respondents to go with him to the BID office. They declined, but made a written
undertaking to appear at the BID office for investigation on
“8. On
In his Petition, Acejas narrates some
more occurrences as follows:
“1.
x x x x x x x x x
“3.
“a) The managing
partner of the law firm, Atty. Lucenario, briefed [Acejas] about the facts
regarding the confiscation by agents of the BID of the passport
belonging to a Japanese client. x x x.
“b) Thereafter,
[Acejas] was tasked by Atty. Lucenario to ‘meet
his brother-in-law Mr. Expedito Perlas, who happened to be a policeman and a
friend of Mr. Takao Aoyagi.’ Thus,
[Acejas] ‘met Mr. Perlas for the first
time in the afternoon’ of this date.
“c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at
the Diamond Hotel, where they were staying. x
x x [Acejas] advised them that the law firm
decided that the clients ‘can file an
action for Replevin plus Damages for the recovery of the Japanese passport.’
“d) The CONTRACT
FOR LEGAL SERVICES was signed between the client and the law firm, thru
[Acejas] as partner thereof. x x
x The amount of Fifty Thousand
Pesos (Php.50,000.00) was agreed to be paid by way of ‘Case Retainer’s/Acceptance Fees’, which was supposed to be payable
‘upon (the) signing (t)hereof’, and
the sum of Php.2,000.00 by way of appearance fee. However, the client proposed to pay half only
of the acceptance fee (Php.25,000.00), plus the estimated judicial expenses for
the filing or docket fees (Php.15,000.00).
x x x It
was then further agreed that the ‘balance
of Php.25,000.00 was supposed to be given upon the successful recovery of the
Japanese passport’.
“e) The clients informed [Acejas] that ‘they are supposed to leave for Davao the following day on the 23rd
because they will spend their Christmas in Davao City; but they promised that
they will be back on the 26th, which is a Sunday, so that on the 27th,
which is a Monday, the complaint against the BID officers will have to be filed
in Court’.
x x x x x x x x x
“6.
“7. 4th
January 1994 – ‘In the late afternoon,
the law firm received a telephone call from Mr. Perlas informing (it) that the
Japanese is already in Manila and he was requesting for an appointment with any
of the lawyer of the law firm on January 5, 1994’.
“8.
x x x.
“b) [Acejas] ‘told Mr. Pelingon Jr. that all the
pleadings are ready for filing but, of course, the Japanese client and the
wife should first read the complaint and sign if they want to pursue the
filing of the complaint against the BID agents’.
“c) For the first time, ‘Mr. Pelingon advised against the intended filing of the case’. x
x x He ‘instead
suggested that he wants to directly negotiate with the BID agents.’
“d) Thereafter, ‘Mr. Pelingon instructed Mr. Dick Perlas to
contact the BID agent who confiscated the Japanese passport.’ ‘Mr. Perlas and Mr. Pelingon were able to
contact the BID agent’.
“e) For
the ‘first time [Acejas] saw Mr.
Hernandez’, when the latter arrived and also accused Victor Conanan. In the course of the meeting, a confrontation
ensued between [Acejas] and [Hernandez] concerning the legal basis for the
confiscation of the passport. [Acejas] demanded
for the return of the Japanese passport x
x x. Mr. Hernandez ‘said that if there are no further derogatory report concerning the
Japanese client, then in a matter of week (from January 5 to 12), he will
return the passport’.
“f) [Acejas] ‘gave an ultimatum to Mr. Hernandez that if
the Japanese passport will not be returned in one (1) week’s time, then (the
law firm) will pursue the filing of the replevin case plus the damage suit
against him including the other BID agents’.
“g) ‘x x
x Mr. Pelingon Jr. for the second time advised against the filing
thereof saying that his Japanese brother-in-law would like to negotiate or in
his own words ‘magbibigay naman [i.e. will give money anyway].’
“9.
“a) Again, ‘Mr. Perlas called the law office and informed
x x
x that the Japanese client is now in
“b) x x
x according to Pelingon Jr., the Japanese does not want to meet with
anybody because anyway they are willing to pay or negotiate.
“c) [Hernandez was
also] present at the meeting and [Acejas] ‘met
him for the second time. x x
x [Acejas] said that if
[Hernandez] will not be able to return the passport on or before January 12,
1994, then the law firm will have no choice but to file the case against
him x
x x. Again, for the third time Mr. Pelingon
warned against the filing of the case because he said that he would directly
negotiate with the BID agents.’
“d) The
“10.
“a) Mr. Perlas
called up the law office informing that the Japanese client was already in
x x x x x x x x x
“c) x x x x
x x x x x
“At this meeting, ‘the
Japanese was inquiring on the status of the case and he was wondering why the
Japanese passport is not yet recovered when according to him he has already
paid for the attorney fees. And so,
[Acejas] explained to him that the case has to be filed and they still have to
sign the complaint, the Special Power of Attorney and the affidavit relative to
the filing of replevin case. But the
Japanese would not fully understand. So,
Pelingon Jr. again advised against the filing of the case saying that
since there is no derogatory record of Mr. Aoyagi at the BID office, then the
BID agents should return the Japanese passport.’
x x x x x x x x x
“e) Thereafter, ‘Pelingon, Jr. and Dick Perlas x x x
tried to contact Mr. Hernandez.’ Since,
they were able to contact the latter, ‘we
waited until around
“‘Very
strangely when [Acejas] tried to hand-over the Japanese passport to the
Japanese across the table, the Japanese was motioning and wanted to get the
passport under the table. x x
x [Acejas] found it
strange. (He) x x x thought that it was a Japanese custom to
receive things like that under the table.
But nonetheless, [Acejas] did not give it under the table and instead
passed it on to Mr. Dick Perlas who was seated at (his) right. And so, it was Mr. Dick Perlas who took the
passport from [Acejas] and finally handed it over to Mr. Aoyagi.’ x x x. ‘After that, there was a little chat between
Mr. Hernandez and the client, and Mr. Hernandez did not stay for so long and
left.’
“Still, thereafter, ‘(w)hen the Japanese passport was received,
Bethel Grace Aoyagi and [Acejas] were talking and she said since the Japanese
passport had been recovered, they are now willing to pay the Php.25,000.00
balance of the acceptance fee.’
“‘Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed]
Mr. Hernandez to receive it while Mr. Hernandez was still around standing. But Mr. Hernandez did not receive it.
“Since, the payment is due
to the law firm, [Acejas] received the brown envelope.
x x x x x x x x x
“Not long after, [Acejas]
saw his companion, accused Mr. Victoriano, who was ‘signaling something’ as if there was a sense of urgency. [Acejas] immediately stood up and left
hurriedly. When [Acejas] approached Mr.
Victoriano, he ‘said that the car which
[Acejas] parked in front of the Diamond Hotel gate, somebody took the
car’. [Acejas] ‘went out and checked and realized that it was valet parking so it was
the parking attendant who took the car and transferred the car to the parking
area’. [Acejas] requested ‘Mr.
Victoriano to get (the) envelope and the coat’, at the table.
“g) ‘When [Acejas] went out,
[Acejas] already looked for the parking attendant to get the car. When the car arrived, [Acejas] just saw from
the doors of the
Ruling of
the Sandiganbayan
The Sandiganbayan ruled that the
elements of direct bribery,[20] as well as conspiracy in the commission of
the crime,[21]
had been proven. Hernandez and Conanan
demanded money;[22] Perlas negotiated
and dealt with the complainants;[23]
and Acejas accepted the payoff and gave it to Perlas.[24]
Victoriano
was acquitted on reasonable doubt.[25] Although he had picked up the envelope
containing the payoff, this act did not sufficiently show that he had conspired
with the other accused.[26]
The Sandiganbayan did not give
credence to the alleged belief of Acejas that the
money was the balance of the law firm’s legal fees.[27] If he had indeed believed that the money was
payable to him, he should have kept and retained it. The court then inferred that he had merely
been pretending to protect his client’s rights when he threatened to file a
suit against Hernandez.[28]
The January 3, 2003 Resolution
acquitted Conanan and denied the Motions for Reconsideration of Hernandez,
Acejas and Perlas. According to the
Sandiganbayan, Conanan was not shown to be present during the meetings on
January 8 and 12, 1994.[29] His presence during one of those meetings, on
The January
14, 2003 Resolution denied Acejas’ Supplemental
Motion, which prayed for a new trial.
Petitioner Hernandez raises the
following issues:
“I. Whether or not respondent court erred in
ruling that [Hernandez] was part of the conspiracy to extort money from private
respondents, despite lack of clear and convincing evidence.
“II. Whether or not the Honorable Sandiganbayan
gravely abused its discretion when it overlooked the fact that the legal
requisites of the crime are not completely present as to warrant [Hernandez’]
complicity in the crime charged.
“III. Whether or not respondent Sandiganbayan, 5th
Division, ruled erroneously when it relied solely on the naked and
uncorroborated testimonies of the late Filomeno ‘Jun’ Pelingon, Jr. in order to
declare the existence of a conspiracy to commit bribery, as well as the guilt
of the accused.
“IV. Whether or not [respondent] court’s
acquittal of co-accused Victor Conanan and its conviction of [Hernandez] for
the offense as charged effectively belies the existence of a conspiracy.
“V. Whether or not the respondent Sandiganbayan
committed grave abuse of discretion amounting to lack of, or in excess of
jurisdiction when it found [Hernandez] guilty beyond reasonable doubt of the
crime of direct bribery.”[30]
On the
other hand, Petitioner Acejas simply enumerates the following points:
“1. The Conspiracy Theory
2. The presence of lawyer-client
relationship; duty to client’s cause; lawful performance of duties
3. ‘Instigation’ not ‘entrapment’
4. Credibility of witness and testimony
5. Affidavit of desistance; effect: creates serious doubts as to the liability
of the accused
6. Elements of ‘bad faith’
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim
tantamount to suppression of evidence”[31]
In the
main, petitioners are challenging the finding of guilt against them. The points they raised are therefore
intertwined and will be discussed jointly.
The Petitions have no merit.
Main Issue:
The
crime of direct bribery exists when a public officer 1)
agrees to perform an act that constitutes a crime in consideration of any
offer, promise, gift or present; 2) accepts the gift in consideration of the
execution of an act that does not constitute a crime; or 3) abstains from the
performance of official duties.[32]
Petitioners were convicted under the
second kind of direct bribery, which contained the following elements: 1) the offender was a public officer, 2) who
received the gifts or presents personally or through another, 3) in
consideration of an act that did not constitute a crime, and 4) that act related
to the exercise of official duties.[33]
Hernandez claims that the prosecution failed to show his
involvement in the crime. Allegedly, he
was merely implementing
The
chain of circumstances, however, contradicts the contention of Hernandez. It was he who had taken the passport of Takao
Aoyagi.[36] On various dates,[37]
he met with Takao and Bethel Grace Aoyagi, and also Pelingon,
regarding the return of the passport. Hernandez
then asked for a down payment on the payoff,[38]
during which he directed Bethel Grace to deliver the money to Acejas.[39]
Bethel
Grace Aoyagi’s testimony, which was confirmed by the other witnesses, proceeded
as follows:
“PROSECUTOR MONTEMAYOR:
“Q: When Vlademir
Hernandez arrived, what happened?
“A: He got the
passport from his pocket and passed it on to Atty. Acejas, sir.
“Q: What happened
after he gave the passport to Atty. Acejas?
“A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.
“Q: After that,
what happened?
“A: Then, [Perlas]
gave it to Mr. Aoyagi, sir.
“Q: The passport?
“A: Yes,
sir.
“Q: And when Mr.
Aoyagi received the passport, what did you do or what did Mr. Aoyagi do?
“A: He checked all
the pages and he kept it, sir.
x x x x x x x x x
“Q: What did you do
with that money after Mr. Aoyagi received the passport?
“A: Because our
agreement is that after giving the passport we would give the money so when Mr.
Perlas handed to my husband the passport, I gave the money placed on my lap to
my husband and he passed it to Mr. Hernandez who refused the same.
“ATTY. ACEJAS:
“Your Honor, please, may I just make a clarification that
when the witness referred to the money it pertains to the brown envelope which
allegedly contains the money x x x .
“AJ ESCAREAL:
“Noted.
“PROSECUTOR MONTEMAYOR:
“Q: Did Mr.
Hernandez got hold or touched the envelope?
“A: No, sir.
“Q: When he [did]
not want to receive the envelope, what did your husband do?
“A: When Mr.
Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so
my husband handed it to Atty. Acejas who received the same and later on passed
it to Mr. Perlas.
“Q: When Mr.
Hernandez pointed to Atty. Acejas, did he say anything?
“A: None, sir, he
just motioned like this.
“INTERPRETER:
“Witness motioning by [waving]
her two (2) hands, left and right.
“PROSECUTOR MONTEMAYOR:
“Q: And at the
same time pointed to Atty. Acejas?
“A: Yes, sir.
“Q: And your
husband gave the envelope to Atty. Acejas?
“A: Yes, sir.
“Q: And Atty.
Acejas, in turn, handed the said envelope to whom?
“A: Expedito
Perlas, sir.
“Q: Did Expedito
Perlas [receive] that envelope?
“A: Yes, sir.
“Q: After that,
what happened?
“A: Mr. Perlas put
the money on his side in between him and Atty. Acejas, sir.
“Q: And then, what
happened?
“A: After the money
was placed where it was, we were surprised, I think, it happened in just
seconds[.] Mr. Vlademir Hernandez
immediately left and then all of a sudden somebody came and picked up the
envelope, sir.”[40]
Significantly,
Hernandez does not address the lingering questions about why Takao Aoyagi or
his representatives had to negotiate for the retrieval of the passport during
the meetings held outside the BID.
Ponciano Ortiz, chief of the Operation and Intelligence Division of the
BID, testified that it was not a standard operating procedure to officially
return withheld passports in such locations.[41] It can readily be inferred that Hernandez had
an ulterior motive for withholding the passport for some time despite the
absence of any legal purpose.
Also,
Hernandez cannot claim innocence based on Conanan’s
acquittal.[42] While the testimony of Pelingon was the only
evidence linking Conanan to the conspiracy,[43]
there was an abundance of evidence showing Hernandez’s involvement.
Acejas,
on the other hand, belies his involvement in the conspiracy. He attacks the prosecution’s version that he
was silent during the negotiations for the return of the passport.[44] According to him, he kept giving Hernandez an
ultimatum to return the passport, with threats to file a court case.
Acejas
testified that he had wanted to file a case against Hernandez, but was prevented
by Spouses Aoyagi. His supposed preparedness
to file a case against Hernandez might have just been a charade and was in fact
belied by Pelingon’s testimony regarding the
“ATTY. VALMONTE:
“Q: Who arrived
first at Aristocrat Restaurant, you or Acejas?
“A: Acejas arrived
together with Dick Perlas[. T]hey arrived ahead of me, sir.
x x x x x x x x x
“Q: When the three
(3) of you were talking that was the time that Atty. Acejas was showing you
documents that he was going to file [a] P1 million damage suit against
Hernandez?
“A: Yes, sir.
“Q: Now, is it not
that when Hernandez and Cunanan arrived and you were talking with each other,
Atty. Acejas also threatened, reiterated his threat to Hernandez that he would
file [a] P1 million damage suit should Hernandez [fails] to return the
passport?
“A: When the group
[was] already there, the P1 million [damage suit] was not [anymore]
mentioned, sir.”[45]
Even
assuming that Acejas negotiated for the return of the passport on his client’s
behalf, he still failed to justify his actions during the entrapment
operation. The witnesses all testified
that he had received the purported payoff.
On this point, we recount the testimony of Bethel Grace Aoyagi:
“Prosecutor Montemayor:
x x x x x x x x x
“Q: When he [did]
not want to receive the envelope, what did your husband do?
“A: When Mr.
Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so
my husband handed it to Atty. Acejas who received the same and later on passed
it to Mr. Perlas.
“Q: When Mr.
Hernandez pointed to Atty. Acejas, did he say anything?
“A: None, sir, he
just motioned like this.
“Interpreter:
“Witness motioning by [waving]
her two (2) hands, left and right.
“Prosecutor Montemayor:
“Q: And at the
same time pointed to Atty. Acejas?
“A: Yes, sir.
“Q: And your
husband gave the envelope to Atty. Acejas?
“A: Yes, sir.
“Q: And Atty.
Acejas, in turn, handed the said envelope to whom?
“A: Expedito
Perlas, sir.
“x x x x x x x x x
“Q: After that,
what happened?
“A: Mr. Perlas put
the money on his side in between him and Atty. Acejas, sir.
“Q: And then, what
happened?
“WITNESS:
“A: After the money
was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vladimir Hernandez immediately left and
then all of a sudden somebody came and picked up the envelope, sir.
“Prosecutor Montemayor:
“Q: Do you know the
identity of that somebody who picked up the envelope?
x x x x x x x x x
“A: Victoriano,
sir.”[46]
Acejas
failed to justify why he received the payoff money. It would be illogical to sustain his
contention that the envelope represented the balance of his firm’s legal
fees. That it was given to Hernandez
immediately after the return of the passport leads to the inescapable conclusion
that the money was a consideration for the return. Moreover, Acejas should have kept the amount if
he believed it to be his. The Court
agrees with the Sandiganbayan’s pronouncement on this point:
“x x x. If he believed that the brown envelope
contained the balance of the acceptance fee, how come he passed it to
Perlas? His passing the brown envelope
to Perlas only proves that the same did not contain the balance of the
acceptance fee; otherwise, he should have kept and retained it. Moreover, the three prosecution witnesses
testified that the brown envelope was being given to Hernandez who refused to
accept the same. This further shows that
the brown envelope was not for the balance of the acceptance fee because, if it
were, why was it given to Hernandez.
x x x x x x x x x
“Acejas’
defense was further weakened by the fact that his testimony as to why he left
immediately after the brown envelope was given to him was uncorroborated. He should have presented accused Victoriano
to corroborate his testimony since it was the latter who allegedly called him
and caused him to leave their table.
This, he did not do. The
ineluctable conclusion is that he was, indeed, in cahoots with his co-accused.”[47]
Lawyer’s Duty
Acejas alleges that the Sandiganbayan failed to appreciate
his lawyer-client relationship with the complainants. He was supposedly only acting in their best
interest[48] and
had the right to be present when the passport was to be returned.[49]
True, as a lawyer, it was his duty to
represent his clients in dealing with other people. His presence at Diamond Hotel for the
scheduled return of the passport was justified.
This fact, however, does not support his innocence
Acejas, however, failed to act for or represent
the interests of his clients. He knew
of the payoff, but did nothing to assist or protect their rights, a fact that
strongly indicated that he was to get a share.
Thus, he received the money purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts revealed that he was a
conspirator.
The
Court reminds lawyers to follow legal
ethics[50]
when confronted by public officers who extort money. Lawyers must decline and report the matter to
the authorities.[51] If the extortion is directed at the client, they
must advise the client not to perform any illegal act. Moreover, they must report it to the
authorities, without having to violate the attorney-client privilege.[52] Naturally, they must not participate in the
illegal act.[53]
Acejas
did not follow these guidelines. Worse,
he conspired with the extortionists.
Instigation
Also
futile is the contention of petitioners that Pelingon instigated the situation
to frame them into accepting the payoff.[54] Instigation is the employment of ways and
means to lure persons into the commission of an offense in order to prosecute
them.[55]
As opposed to entrapment, criminal intent originates in the mind of the
instigator.[56]
There
was no instigation in the present case, because the chain of circumstances
showed an extortion attempt. In other
words, the criminal intent originated from petitioners, who had arranged for
the payoff.
During the cross-examination of
Bethel Grace Aoyagi, pertinent was Associate Justice Escareal
clarifying question as follows:
“AJ ESCAREAL:
“[Q:] Did Mr.
Hernandez say anything when he returned the passport to your husband?
“A: He did not say
anything except that he instructed [the] group to abide with the agreement that
upon handing of the passport, the money would also be given immediately
(‘magkaliwaan’).”[57]
Alleged Discrepancies
According
to Acejas, Pelingon’s testimonies given in his Complaint-Affidavit, Supplemental-Affidavit,
inquest testimony, testimony in court, and two Affidavits of Desistance were contradictory.[58] He cites these particular portions of Pelingon’s Affidavit:
“5. That having been
enlightened of the case, and conscious that I might be prosecuting innocent
men, I have decided on my own disposition, not to further testify against
any of the accused in the Sandiganbayan or in any court or tribunal, regarding
the same cause of action.
“6. That this
affidavit of desistance to further prosecute is voluntarily executed, and that
no reward, promise, consideration, influence, force or threat was executed to
secure this affidavit.”[59]
Pelingon testified that he had
executed the Affidavit of Desistance because of a threat to his life.[60] He did not prepare the Affidavit; neither was
it explained to him. Allegedly, his true
testimony was in the first Complaint-Affidavit that he had executed.[61]
By appearing and testifying during
the trial, he effectively repudiated his Affidavit of Desistance. An affidavit of desistance must be ignored
when pitted against positive evidence given on the witness stand.[62]
Acejas has failed to identify the other
material points that were allegedly inconsistent. The Court therefore adopts the
Sandiganbayan’s finding that these were minor details that were not indicative
of the lack of credibility of the prosecution witnesses.[63] People
v. Eligino[64] is in point:
“x x x. While witnesses may differ in their recollections of an
incident, it does not necessarily follow from their disagreement that all of
them should be disbelieved as liars and their testimony completely discarded as
worthless. As long as the mass of
testimony jibes on material points, the slight clashing statements neither
dilute the witnesses’ credibility nor the veracity of their testimony. Thus, inconsistencies and contradictions
referring to minor details do not, in any way, destroy the credibility of
witnesses, for indeed, such inconsistencies are but natural and even enhance
credibility as these discrepancies indicate that the responses are honest and
unrehearsed.”[65]
Suppression of Evidence
Acejas
further raises the issue of suppression of evidence. Aoyagi, from whom the money was supposedly
demanded, should have been presented by the prosecution as a witness.[66]
The
discretion on whom to present as prosecution witnesses falls on the People.[67] The freedom to devise a strategy to convict
the accused belongs to the prosecution.[68] Necessarily, its decision
on which evidence, including which witnesses, to present cannot be dictated by the
accused or even by the trial court.[69] If petitioners believed that Takao Aoyagi’s
testimony was important to their case, they should have presented him as their
witness.[70]
Finally, Acejas claims that his Comment/Objection
to the prosecution’s Formal Offer of Evidence was not resolved by the
Sandiganbayan.[71]
In that Comment/Objection, he had noted the lateness in the filing of the
Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan
admitted the prosecution’s Formal Offer of Evidence upon the promulgation of its
Decision. In effect, Acejas’ Comment/Objection
was deemed immaterial. It could not
overrule the finding of guilt. Further,
it showed no prayer that the Sandiganbayan needed to act upon.[72]
Finally
we reiterate that, as a rule, factual findings of the Sandiganbayan are
conclusive upon this Court.[73] We are convinced that these were clearly
based on the evidence adduced in this case.
In sum, we find that the prosecution
proved the elements of direct bribery. First, there is no question that the offense
was committed by a public officer. BID
Agent Hernandez extorted money from the Aoyagi spouses for the return of the
passport and the promise of assistance in procuring a visa. Petitioner Acejas
was his co-conspirator. Second, the offenders received the money
as payoff, which Acejas received for the group and then
gave to Perlas. Third, the money was given in consideration of the return of the
passport, an act that did not constitute a crime. Fourth,
both the confiscation and the return of the passport were made in the
exercise of official duties.
For
taking direct part in the execution of the crime, Hernandez and Acejas are
liable as principals.[74] The evidence shows that the
parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the parties
did not commit the same act, if the participants performed specific acts that
indicated unity of purpose in accomplishing a criminal design.[75] The act of one is the act of all.
WHEREFORE,
the Petitions are DENIED, and the assailed Decision and
Resolutions AFFIRMED. Costs against
petitioners.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Chief
Justice
Chairman,
First Division
W E C O N C U R:
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
(No part. Ponente of assailed Resolutions)
ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO
Associate Justice
Associate Justice
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
[1] GR No. 156643, rollo, pp. 10-56; GR No. 156891, rollo, pp. 14-42.
[2]
[3]
[4]
[5]
[6]
[7]
GR No. 156643 was submitted
for decision on
GR
No. 156891 was submitted for decision on
[8] See Petitioner Hernandez’ Memorandum, pp. 6-9; GR No. 156891, rollo, pp. 378-381.
[9]
Bethel Grace Aoyagi testified
that Perlas had solemnized her marriage with Takao Aoyagi in 1992. Perlas was allegedly a member of the Manila
Police Force (TSN,
[10] Assailed Decision, pp. 43-45.
[11]
[12]
[13]
[14]
[15] Pelingon testified that this envelope was “the big one.” He was referring to a long brown envelope, measuring 10 by 12 inches, commonly used in storing mail matters or pleadings (TSN, January 16, 1995, p. 25).
[16] Respondent’s Comment, pp. 9-11; GR No. 156643, rollo, pp. 382-384.
[17] Assailed Decision, p. 3.
[18] Petitioner Hernandez’s Memorandum, pp. 9-10; GR No. 156891, rollo, pp. 381-382.
[19] Petitioner Acejas’ Memorandum, pp. 11-24; GR No. 156643, rollo, pp. 492-505.
[20] Assailed Decision, p. 55.
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
Assailed Resolution dated
[30] Petitioner Hernandez’s Memorandum, p. 12; GR No. 156891, rollo, p. 384. Uppercase in the original.
[31] Petitioner Acejas’ Memorandum, p. 24; GR No. 156643, rollo, p. 505. Uppercase and italics in the original.
[32]
Revised
Penal Code, Art. 210. See also A. Gregorio, Fundamentals
of Criminal Law Review 569 (1997).
[33]
Tad-y v. People of the Philippines, 466 SCRA 474, August 11, 2005; Magno v. Commission on Elections, 439
Phil. 339, October 4, 2002; Manipon v.
Sandiganbayan, 227 Phil. 249, July 31, 1986; Maniego v. People, 88 Phil. 494,
[34] Petitioner Hernandez’ Memorandum, p. 13; GR No. 156891, rollo, p. 385.
[35]
[36]
TSN,
[37]
He met Takao and Bethel Grace
Aoyagi at the Sportsman Karaoke,
[38]
TSN,
[39]
TSN,
[40]
TSN,
[41]
TSN,
[42] Petitioner Hernandez’s Memorandum, p. 23; GR No. 156891, rollo, p. 395.
[43] Assailed Resolution, p. 3; GR No. 156643, rollo, p. 305.
[44] Petitioner Acejas’ Memorandum, p. 24; GR No. 156643, rollo, p. 505.
[45]
TSN,
[46]
TSN,
[47] Assailed Decision, p. 53.
[48]
[49] Petitioner Acejas’ Memorandum, p. 33; GR No. 156643 rollo, p. 514.
[50] Code of Professional Responsibility.
[51] Canon 1 of the Code of Professional Responsibility requires lawyers to uphold the constitution, obey the laws of the land, and promote respect for law and legal processes.
[52] Rule 15.02 of Canon 12 states: “A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.” Rule 21.01 of Canon 21 is also pertinent: “A lawyer shall not reveal confidences or secrets of his client except: a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.”
[53] Rule 1.01 of Canon 1 states: “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”
[54] Petitioner Acejas’ Memorandum, p. 36; GR No. 156643, rollo, p. 517; Petitioner Hernandez’ Memorandum, p. 21; GR No. 156891, rollo, p. 393.
[55]
People v. Eligino, 216 SCRA 320,
[56]
[57]
TSN,
[58] Petitioner Acejas’ Memorandum, p. 45; GR No. 156643, rollo, p. 526.
[59]
[60] Assailed Decision, p. 13.
[61]
[62]
People v. Ocampo, 435 Phil. 684,
[63] The portion of the Assailed Decision is reproduced as follows:
“The defense notes certain inconsistencies in the statements
of Jun Pelingon and those of the other prosecution witnesses, to wit: (1) While
Jun Pelingon, in his complaint-affidavit, declared that Dick Perlas called up
his sister, Bethel Grace P. Aoyagi, in Davao City and told her to come back to
Manila immediately, his sister, in her testimony in Court, declared she did not
talk to Perlas through the phone when she was in Davao; (2) NBI Agent Saunar’s
testimony in Court that the amount handed over to him by the complainants was P50,000.00
run counter to Jun Pelingon’s testimony that the amount provided by the spouses
Aoyagi was P25,000.00; and (3) Jun Pelingon stated in the inquest
proceedings that BID Agents Hernandez and Conanan arrived at the Aristocrat on
January 5, 1994 30 to 45 minutes after 10:30 a.m. However, in his complaint, he said the BID
agents came at
“The
alleged discrepancies relate to (a) whether or not Dick Perlas called
complainants in
“The
Court considers these alleged discrepancies to be collateral matters or minor
details that do not adversely affect the credibility of the prosecution
witnesses or the trustworthiness of the testimonies offered by them. They do not touch upon the commission of the
crime itself, which was committed when the demand was made, and when the bribe
money was received. It has been ruled
that contradictions in the testimonies of prosecution witnesses not on material
points are not fatal (People v. Pulo, 147 SCRA 551). Minor contradictions are to be expected but
must be disregarded if they do not affect the basic credibility of the evidence
as a whole (People v. Ancheta, 148 SCRA 178).”
Assailed Decision, pp. 48-49; GR No. 156643, rollo, pp. 226-227.
[64] Supra note 55.
[65] Id. at 331, per Melo J. (citing People v. Manalansan, 189 SCRA 619, September 14, 1990; People v. de los Santos, 200 SCRA 431, August 9, 1991; People v. de la Piñas, 141 SCRA 379; February 19, 1986; People v. Barba, 203 SCRA 436, November 13, 1991; People v. de los Reyes, 203 SCRA 707, November 19, 1991).
[66] Petitioner Acejas’ Memorandum, p. 62; GR No. 156643, rollo, p. 543.
[67] Respondent’s Memorandum, p. 27; GR No. 156643, rollo, p. 455.
[68]
Bautista v. Court of Appeals, 351 Phil. 411,
[69]
People v. Ortiz, 413 Phil. 592,
[70]
People v. Barellano, 377 Phil. 598,
[71] Petitioner Acejas’ Memorandum, p. 63; GR No. 156643 rollo, p. 544.
[72]
Comment/Objection dated
[73]
Soriquez v. Sandiganbayan,
GR No. 153526,
[74] Revised Penal Code, Art. 17.
[75] People v. Gallo, 376 Phil. 265, November 16, 1999; People v. Regalario, 220 SCRA 368, March 23, 1993; See also Talay v. Court of Appeals, 446 Phil. 256, 277, February 27, 2003; People v. Alonzo, 73 SCRA 483, October 19, 1976.