614 Phil. 179
NACHURA, J.:
The Information in Criminal Case No. 27944 states:The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Parañaque City. In March 1999, a Special Audit Team composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local Government Audit Office Assignment Order No. 99-002, audited selected transactions of Parañaque City for the calendar years 1996 to 1998, including the walis tingting purchases.
That on January 11, 1996 or thereabout, in Parañaque City, Philippines, and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO Trading, for the purchase of 5,998 pieces of "walis ting-ting" at P25 per piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27946 states:
That on June 30, 1997 or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of "walis ting-ting" at P15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00), thus causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27952 states:
That [in] September 1997, or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of "walis ting-ting" at P15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27953 states:
That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advance of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of "walis ting-ting" on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:
Date of Transaction Voucher No. Amount Quantity
February 20, 1997 101-97-04-1755 P 3,000.00 120 pcs. February 12, 1997 101-97-04-1756 P100,000.00 4,000 pcs. February 11, 1997 101-97-04-1759 P149,500.00 5,980 pcs.
in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which transactions were clearly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27954 states:
That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of "walis ting-ting" on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:
Date of Transaction Voucher Number Amount Quantity
October 15, 1996 101-96-11-7604 P 100,000.00 4,000 pcs. October 18, 1996 101-96-11-7605 P 100,000.00 4,000 pcs.
in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00), thus, causing damage and prejudice to the government in the aforesaid sum.[4]
1. [WHETHER] THE PROSECUTION'S PROOF OF OVERPRICING [IS] HEARSAY.For his part, petitioner Marquez raises the following:
2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ' TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY.
3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS EXCEPTION, "PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC RECORDS, ETC.," x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN.
4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].[11]
1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER EXISTING REGULATIONS[;]
2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;]
3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZ'S] GUILT BY THE SANDIGANBAYAN - FOURTH DIVISION[;]
4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;]
5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN BEHALF OF PARAÑAQUE CITY WERE MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;]
6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;]
7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN - FOURTH DIVISION REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF INTEREST[;]
8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;]
9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and]
10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12]
Section 3. Corrupt practices of public officers--In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(g) Entering on behalf of the Government, into any contract or transaction, manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their personal knowledge. The prosecution's principal witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected transactions of Parañaque City. The report which she identified and testified on [was] made by [the] Special Audit Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other documents constituting the supporting papers of the team's report were public documents requested from the City Auditor of Parañaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Audit Team's official task was to review the documents of the walis tingting transactions. In the process of [the] review, they found many irregularities in the documentations --violations of the Local Government Code and pertinent COA rules and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated in a report. The same report was the basis of Ms. Bermudez's testimony. x x x.[21]
The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now deceased Enriquez.
There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and decide to commit it." Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design.
x x x x
Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts.
In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded:"We would be setting a bad precedent if a head of office plagued by all too common problems--dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence--is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.
"x x x x
"x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling."[23]