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588 Phil. 515

SECOND DIVISION

[ G.R. Nos. 168578-79, September 30, 2008 ]

NIETO A. RACHO, PETITIONER, VS. HON. PRIMO C. MIRO, IN HIS CAPACITY AS DEPUTY OMBUDSMAN FOR THE VISAYAS, HON. VIRGINIA PALANCA-SANTIAGO, IN HER CAPACITY AS OMBUDSMAN DIRECTOR, AND HON. ANTONIO T. ECHAVEZ, IN HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT - CEBU CITY, BRANCH 8, RESPONDENTS.

D E C I S I O N

QUISUMBING, J.:

This petition for certiorari and mandamus under Rule 65 of the Rules of Court seeks the annulment of the Joint Order[1] dated April 1, 2005 of the Office of the Ombudsman (OMB) in the Visayas. The OMB had denied reconsideration of its Reinvestigation Report[2] in OMB-V-C-02-0240-E and its Resolution in OMB-C-C-03-0729-L, both dated January 10, 2005. Petitioner herein also assails both issuances of the OMB.

The factual antecedents of this case are as follows.

On November 9, 2001, DYHP Balita Action Team (DYHP) of the Radio Mindanao Network, Inc. addressed a letter[3] on behalf of an anonymous complainant to Deputy Ombudsman for the Visayas Primo C. Miro. The letter accused Nieto A. Racho, an employee of the Bureau of Internal Revenue (BIR)-Cebu, of having accumulated wealth disproportionate to his income. Photocopied bank certifications disclosed that Racho had a total deposit of P5,793,881.39 with three banks.

Pio R. Dargantes, the Graft Investigation Officer I (GIO) assigned to investigate the complaint, directed DYHP to submit a sworn statement of its witnesses. Instead, the latter filed a Manifestation[4] dated October 16, 2002 withdrawing its complaint for lack of witnesses. Consequently, GIO Dargantes dismissed the case. He ruled that the photocopied bank certifications did not constitute substantial evidence required in administrative proceedings.[5]

Then, in two separate Memoranda dated May 30, 2003,[6]Ombudsman Director Virginia Palanca-Santiago disapproved GIO Dargantes's Resolution. In OMB-V-A-02-0214-E, Director Palanca-Santiago held Racho administratively liable for falsification and dishonesty, and meted on him the penalty of dismissal from service with forfeiture of all benefits and perpetual disqualification to hold office.[7] In OMB-V-C-02-0240-E, Director Palanca-Santiago found probable cause to charge Racho with falsification of public document under Article 171(4)[8] of the Revised Penal Code.[9] The latter moved for reconsideration but it was denied by the Deputy Ombudsman.

On May 30, 2003, Racho was charged with falsification of public document, docketed as Criminal Case No. CBU-66458 before the Regional Trial Court (RTC) of Cebu City, Branch 8. The Information alleged:
That on or about the 7th day of February, 2000, and for sometime subsequent thereto, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused NIETO A. RACHO, a public officer, being the Chief, Special Investigation Division, Bureau of Internal Revenue (BIR), Regional Office No. 13, Cebu City, in such capacity and committing the offense in relation to [his] office, with deliberate intent, with intent to falsify, did then and there willfully, unlawfully and feloniously falsify a public document, consisting of his Statement of Assets, Liabilities and Networth, Disclosure of Business Interest and Financial Connections; and Identification of Relatives In The Government Service, as of December 31, 1999, by stating therein that his cash in bank is only FIFTEEN THOUSAND PESOS (P15,000.00), Philippine Currency and that his assets minus his liabilities amounted only to TWO HUNDRED THREE THOUSAND SEVEN HUNDRED FIFTY EIGHT PESOS (P203,758.00), Philippine Currency, when in truth and in fact, said accused has BANK DEPOSITS or cash in banks amounting to FIVE MILLION SEVEN HUNDRED NINETY THREE THOUSAND EIGHT HUNDRED ONE PESOS and 39/100 (P5,793,801.39),[10] Philippine Currency, as herein shown:

1) Metropolitan Bank and Trust Company - Cebu, Tabunok Branch:

Unisa No.
Amount

3-172-941-10
P1,983,554.45

3-172-941-11
949,341.82

Total -

P2,932,896.27


2) Philippine Commercial International Bank - Magallanes Branch, CebuCity:

Account No.
Amount

Equalizer - 29449-29456
P1,000,000.00

PCC Fund - 99-0095-0-0020-clf.b
200,000.00

Optimum Savings - 00-8953-06860-9
28,702.53

Total -

P1,228,702.53


3) Bank of the Philippine Islands - Cebu (Mango) Branch, Gen. Maxilom Avenue, Cebu City:

Account No.
Amount

Gold Savings - 1023-2036-49
P1,632,282.59


thus deliberately failed to disclose an important fact of which he has the legal obligation to do so as specifically mandated under Section 8 of Republic Act No. 6713 (The Norms of Conduct and Ethical Standards for Public Officials and Employees) and Section 7 of Republic Act No. 3019, As Amended (The Anti-Graft and Corrupt Practices Act), thereby making untruthful statement in a narration of facts.

CONTRARY TO LAW.[11]
Racho appealed the administrative case and filed a petition for certiorari under Rule 65 with the Court of Appeals to question the ruling in OMB-V-C-02-0240-E. In a Decision[12] dated January 26, 2004, the appellate court annulled both Memoranda and ordered a reinvestigation of the cases against petitioner. Thereafter, petitioner filed a Motion to Dismiss[13] dated July 21, 2004. The same was denied for lack of merit in an Order[14] dated August 24, 2004.

On reinvestigation, petitioner submitted a Comment[15] dated January 4, 2005 along with supporting documents. On January 10, 2005, the OMB issued the assailed Reinvestigation Report, the dispositive portion of which states:
With all the foregoing, undersigned finds no basis to change, modify nor reverse her previous findings that there is probable cause for the crime of FALSIFICATION OF PUBLIC DOCUMENT, defined and penalized under Article 171 of the Revised Penal Code, against respondent Nieto A. Racho for making untruthful statements in a narration of facts in his SALN. As there are additional facts established during the reinvestigation, re: failure of Mr. Racho to reflect his business connections, then the Information filed against him should be amended to include the same. Let this Amended Information be returned to the court for further proceedings.

SO RESOLVED.[16]
Petitioner sought reconsideration but was denied by the OMB in the Joint Order dated April 1, 2005. It decreed:
The Motion for Reconsideration of respondent did not adduce any new evidence, which would warrant a reversal of our findings; neither did it present proof of errors of law or irregularities being committed.

This being so, this Motion for Reconsideration of respondent is hereby DENIED. The findings of this Office as contained in the two (2) REINVESTIGATION REPORTS (in OMB-V-C-02-0240-E and OMB-V-A-02-0214-E) and RESOLUTION (in OMB-C-C-03-0729-L) stand.

SO ORDERED.[17]
In the instant petition, Racho cites the following issues:
I.

WHETHER OR NOT RESPONDENT OMBUDSMAN DIRECTOR, AS WELL AS RESPONDENT DEPUTY OMBUDSMAN FOR THE VISAYAS WHO SANCTIONED HER DEED, COMMITTED GRAVE ABUSE OF DISCRETION EQUIVALENT TO LACK OR IN EXCESS OF JURISDICTION WHEN SHE REFUSED OR FAILED TO INHIBIT HERSELF FROM CONDUCTING THE SUPPOSED "REINVESTIGATION";

II.

WHETHER OR NOT HEREIN PETITION[ER] WAS DENIED DUE PROCESS OF LAW IN THE SUPPOSED "REINVESTIGATION";

III.

WHETHER OR NOT RESPONDENT OMBUDSMAN DIRECTOR, AS WELL AS RESPONDENT DEPUTY OMBUDSMAN FOR THE VISAYAS WHO SANCTIONED HER DEED, COMMITTED GRAVE ABUSE OF DISCRETION EQUIVALENT TO LACK OR IN EXCESS OF JURISDICTION WHEN SHE HELD THAT PETITIONER'S MOTION FOR RECONSIDERATION DID NOT ADDUCE PROOF OF ANY IRREGULARITY IN THE "REINVESTIGATION"; AND

IV.

WHETHER OR NOT BY REASON OF THIS HONORABLE COURT'S INHERENT POWER TO DO ALL THINGS REASONABLY NECESSARY FOR THE ADMINISTRATION OF JUSTICE, EVEN IF NOT PRAYED FOR IN THE INSTANT PETITION, THE SUBJECT OMBUDSMAN CASES OMB-V-C-02-0240-E AND OMB-C-C-03-0729-L CAN BE DISMISSED.[18]
Stated simply, the issues now for determination are as follows: (1) Whether Ombudsman Director Palanca-Santiago gravely abused her discretion when she did not inhibit herself in the reinvestigation; (2) Whether petitioner was denied due process of law on reinvestigation; and (3) Whether there was probable cause to hold petitioner liable for falsification under Article 171(4) of the Revised Penal Code.

Petitioner ascribes grave abuse of discretion on the part of Ombudsman Director Palanca-Santiago since she did not inhibit herself in the reinvestigation. He claims a denial of due process because of the fact that Director Palanca-Santiago handled the preliminary investigation as well as the reinvestigation of the cases. In both instances, the latter found probable cause to indict petitioner for falsification. For this reason, petitioner believes that Director Palanca-Santiago has turned hostile to him. He insists that respondent director had lost the cold neutrality of an impartial judge when she found probable cause against him on preliminary investigation. Petitioner penultimately questions the haste with which the reinvestigation was concluded and the lack of hearing thereon. In essence, he insists on the dismissal of his cases before the OMB.

On November 6, 2006, the OMB thru the Office of the Special Prosecutor (OSP) filed a Memorandum[19] dated October 23, 2006 for respondents. The OSP avers that the instant petition stated no cause of action since it did not implead the Hon. Ombudsman Simeon Marcelo as a respondent. That Director Palanca-Santiago resolved the investigation adverse to petitioner, the OSP contends, did not necessarily indicate partiality. The OSP explains that the Reinvestigation Report was merely recommendatory and the finding of probable cause was done in line with official duty. It points out further that petitioner failed to cite specific acts by which Director Palanca-Santiago showed hostility towards him. Finally, the OSP charges petitioner with forum shopping since he had already raised the issue of respondent director's impartiality in his petition assailing the Memorandum dated May 30, 2003, before the Court of Appeals.

After considering the contentions and submissions of the parties, we are in agreement that the instant petition lacks merit.

The prosecution of offenses committed by public officers is vested primarily in the OMB. For this purpose, the OMB has been given a wide latitude of investigatory and prosecutory powers under the Constitution and Republic Act No. 6770[20] (The Ombudsman Act of 1989). Its discretion is freed from legislative, executive or judicial intervention to ensure that the OMB is insulated from any outside pressure and improper influence.[21] Hence, unless there are good and compelling reasons to do so, the Court will refrain from interfering with the exercise of the Ombudsman's powers, and will respect the initiative and independence inherent in the latter who, beholden to no one, acts as the champion of the people and the guardian of the integrity of the public service.[22]

The Ombudsman is empowered to determine whether there exists reasonable grounds to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[23] Such finding of probable cause is a finding of fact which is generally not reviewable by this Court.[24] The only ground upon which a plea for review of the OMB's resolution may be entertained is an alleged grave abuse of discretion. By that phrase is meant the capricious and whimsical exercise of judgment equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and so gross as to amount to an evasion of a positive duty; or to a virtual refusal to perform a duty enjoined by law; or to act at all in contemplation of law, as when the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[25]

Considering the facts and circumstances of this case, we find no grave abuse of discretion on the part of respondents. As already well-stated, as long as substantial evidence supports the Ombudsman's ruling, his decision will not be overturned.[26] Here, the finding of the Ombudsman that there was probable cause to hold petitioner liable for falsification by making untruthful statements in a narration of facts rests on substantial evidence.

The OMB evaluated petitioner's Statement of Assets, Liabilities and Networth (SALN) for the year 1999[27] against certified true copies of his bank deposits during the same year. In his SALN, petitioner declared P15,000 cash in bank as of December 31, 1999. The bank certifications of petitioner's deposits, however, confirmed that he had an aggregate balance of P5,793,881.39 in his accounts with three banks. Original certifications dated June 17, 1999 issued by the Bank of the Philippine Islands (BPI)[28] and Equitable PCI Bank (Equitable PCIB)[29] revealed accounts for P1,632,282.59 and P1,228,702.53, respectively. A photocopied certification dated June 16, 1999 from Metrobank[30] indicated a deposit of P2,932,896.27.

The OMB did not accord weight to the Joint Affidavit[31] submitted by petitioner. In said Affidavit, Vieto and Dean Racho, petitioner's brothers, stated that they entrusted to petitioner P1,390,000 and P1,950,000 respectively. On the other hand, petitioner's nephew, Henry Racho, claimed that he delivered the amount of P1,400,000 to petitioner. These sums were purportedly their contribution as stockholders of Angelsons Lending and Investors, Inc. (Angelsons) and Nal Pay Phone Services (NPPS) - businesses managed by the spouses Racho. Ironically, Dean Racho was not listed as a stockholder of the lending company. Moreover, the Articles of Incorporation[32] of Angelsons reflected that Vieto, Henry and the spouses Racho individually paid only P12,500 of the subscribed shares of P50,000 each. Petitioner did not present proofs of succeeding contributions made and their amounts. Curiously, affiants allegedly tendered their additional contributions during family reunions.[33] Neither did the affiants describe the extent of their interest in NPPS. Petitioner merely presented NPPS' Certificate of Registration of Business Name[34] secured by his wife Lourdes B. Racho. Yet, said certificate did not operate as a license to engage in any kind of business, much more a proof of its establishment and operation. Even assuming that said businesses exist, petitioner should have similarly reported his interests therein in his SALN.

Petitioner argues that his culpability should not be ascertained on the basis of photocopied bank certifications. Apparent from the records, however, is the Order[35] dated August 27, 2004 of the OMB which required petitioner to comment on the certified true copies of bank certifications issued by BPI and Equitable PCIB. All the same, even if we exclude his deposit in Metrobank, a significant disparity between his declared cash on hand of P15,000 and cash in bank of P2,860,985.12 subsists when compared to his total bank deposits duly certified for the same year.

Indeed, the determination of probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt.[36] It is enough that it is believed that the act or omission complained of constitutes the offense charged. The trial of a case is conducted precisely for the reception of evidence of the prosecution in support of the charge.[37] A finding of probable cause merely binds the suspect to stand trial. It is not a pronouncement of guilt.[38]

Moreover, we are unable to agree with petitioner's contention that he was denied due process when no hearing was conducted on his motion for reinvestigation. In De Ocampo v. Secretary of Justice,[39] we ruled that a clarificatory hearing is not required during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part of the investigating officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112, thus:
(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine.[40]
This rule applies equally to a motion for reinvestigation. As stated, the Office of the Ombudsman has been granted virtually plenary investigatory powers by the Constitution and by law. As a rule, the Office of the Ombudsman may, for every particular investigation, whether instigated by a complaint or on its own initiative, decide how best to pursue such investigation.[41] In the present case, the OMB found it unnecessary to hold additional clarificatory hearings. Notably, we note that a hearing was conducted during preliminary investigation where petitioner invoked his right to remain silent and confront witnesses who may be presented against him, although there was none presented.

Besides, under the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07), particularly Rule II, Section 7(a),[42]in relation to Section 4(f),[43] a complainant's active participation is no longer a matter of right during reinvestigation. Admittedly, technical rules of procedure and evidence are not strictly applied in administrative proceedings. Thus, it is settled that administrative due process cannot be fully equated with due process in its strict judicial sense.[44]

Petitioner complains of how quickly the reinvestigation proceedings were terminated. The OMB issued the Reinvestigation Report on January 10, 2005, barely a week after petitioner filed his Comment dated January 4, 2005. Thus, the latter surmises that no reinvestigation was actually made. However, a review of the facts would reveal that after the Court of Appeals directed a reinvestigation of the case, the OMB issued an Order dated August 27, 2004 requiring petitioner to submit a comment within 10 days from receipt. The latter failed to comply. On December 1, 2004, petitioner filed a Motion for Extension of Time to File Comment[45] of 30 days; the OMB granted the same for 15 days. On December 17, 2004, petitioner asked for another extension of 30 days reckoned from December 19, 2004 within which to submit a comment; the OMB gave him up to December 28, 2004. On December 28, 2004, petitioner moved for a third extension. Then, without waiting for the OMB's resolution of his latest motion, petitioner filed his Comment on January 4, 2005. But with his repeated motions for extensions, he already contributed to palpable delay in the completion of the reinvestigation.

Clearly, the requirements of due process have been substantially satisfied in the instant case.[46] In its Order [47] dated December 22, 2004, the OMB warned petitioner that no further extension will be given such that if he fails to file a comment on December 28, 2004, the cases against him will be submitted for resolution. Even so, the OMB considered petitioner's belatedly-filed Comment and the documents attached therewith in its Reinvestigation Report. In our view, petitioner cannot successfully invoke deprivation of due process in this case, where as a party he was given the chance to be heard, with ample opportunity to present his side.[48]

Equally clear to us, there was no manifest abuse of discretion on the part of Director Palanca-Santiago for her refusal to inhibit herself in the reinvestigation. Even if a preliminary investigation resembles a realistic judicial appraisal of the merits of the case,[49] public prosecutors could not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged.[50] They are not considered judges, by the nature of their functions, but merely quasi-judicial officers.[51] Worth-stressing, one adverse ruling by itself would not prove bias and prejudice against a party sufficient to disqualify even a judge.[52] Hence, absent proven allegations of specific conduct showing prejudice and hostility, we cannot impute grave abuse of discretion here on respondent director. To ask prosecutors to recuse themselves on reinvestigation upon every unfavorable ruling in a case would cause unwarranted delays in the prosecution of actions.

Finally, we note that petitioner failed to attach a certified true copy of the assailed Resolution in OMB-C-C-03-0729-L in disregard of paragraph 2[53] of Section 1, Rule 65 on certiorari. As previously ruled, the requirement of providing appellate courts with certified true copies of the judgments or final orders that are the subjects of review is indispensable to aid them in resolving whether or not to give due course to petitions. This necessary requirement cannot be perfunctorily ignored, much less violated.[54] In view, however, of the serious matters dealt with in this case, we opted to tackle the substantial merits hereof with least regard to technicalities.

WHEREFORE, the instant petition is DISMISSED for lack of merit. The Regional Trial Court of Cebu City, Branch 8 is hereby ORDERED to proceed with the trial of Criminal Case No. CBU-66458 against petitioner.

Costs against petitioner.

SO ORDERED.

Carpio Morales, Tinga , Velasco, Jr., and Brion, JJ., concur.



[1] Rollo, pp. 32-37.

[2] Id. at 55-71.

[3] Records, p. 4.

[4] Id. at 41.

[5] Id. at 59-61.

[6] Rollo, pp. 90-97 and 98-105.

[7] Id. at 97.

[8] ART. 171.Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prisiĆ³n mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:

x x x x

4. Making untruthful statements in a narration of facts;

x x x x

[9] Rollo, pp. 104-105.

[10] The total amount should be five million seven hundred ninety three thousand eight hundred eighty one pesos (P5,793,881.39).

[11] Records, pp. 71-72.

[12] Rollo, pp. 73-79. Penned by Associate Justice Arsenio J. Magpale, with Associate Justices Conrado M. Vasquez, Jr. and Bienvenido L. Reyes concurring.

[13] Records, pp. 82-83.

[14] Id. at 94.

[15] Id. at 110-112.

[16] Rollo, p. 71.

[17] Id. at 36-37.

[18] Id. at 223-224.

[19] Id. at 247-266.

[20] AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES, approved on December 13, 1989.

[21] Presidential Commission on Good Government (PCGG) v. Desierto, G.R. No. 139675, July 21, 2006, 496 SCRA 112, 121.

[22] Id.

[23] Id.

[24] Galario v. Office of the Ombudsman (Mindanao), G.R. No. 166797, July 10, 2007, 527 SCRA 190, 205.

[25] Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322, 337.

[26] Presidential Commission on Good Government (PCGG) v. Desierto, supra note 21, at 122.

[27] Records, p. 12.

[28] Id. at 7.

[29] Id. at 6.

[30] Id. at 5.

[31] Id. at 113-115.

[32] Id. at 117-123.

[33] Id. at 114.

[34] Id. at 133.

[35] Id. at 95.

[36] Galario v. Office of the Ombudsman (Mindanao), supra note 24, at 204.

[37] Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581, 605.

[38] Galario v. Office of the Ombudsman (Mindanao), supra note 36.

[39] G.R. No. 147932, January 25, 2006, 480 SCRA 71.

[40] Id. at 80.

[41] Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495 SCRA 461, 469.

[42] Sec. 7. Motion for reconsideration.

a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court. (As amended by Administrative Order No. 15 entitled "Re: Amendment of Section 7, Rule II of Administrative Order No. 07," signed by Tanodbayan Aniano A. Desierto on February 16, 2001.)

x x x x

[43] Sec. 4. Procedure - The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

x x x x

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be, conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.

x x x x

[44] Espinosa v. Office of the Ombudsman, G.R. No. 135775, October 19, 2000, 343 SCRA 744, 753.

[45] Records, pp. 96-98.

[46] Filipino v. Macabuhay, G.R. No. 158960, November 24, 2006, 508 SCRA 50, 59.

[47] Records, pp. 100-101.

[48] Filipino v. Macabuhay, supra note 46, at 58.

[49] Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001, 369 SCRA 293, 301.

[50] Gallardo v. People, G.R. No. 142030, April 21, 2005, 456 SCRA 494, 507.

[51] Sales v. Sandiganbayan, supra note 49, at 302.

[52] Republic v. Gingoyon, G.R. No. 166429, December 19, 2005, 478 SCRA 474, 543.

[53] SECTION 1.Petition for certiorari. - ....

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

[54] Go v. Court of Appeals, G.R. No. 163745, August 24, 2007, 531 SCRA 158, 166.

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