.• _-REPUBLIC OF THE PHILIPPINES

SANDIGANBAYAN

QUEZON CITY

THIRD DIVISION

PEOPLE OFPHILIPPINES,

THE CRIM CASE NO. SB-18-CRM-0383

Plaintiff,For: Violation of Section 3(g),R.A. No. 3019, as amended

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Accused.

Present:CABOTAJE-TANG, P.J.,Chairperson,FERNANDEZ, B. J. andFERNANDEZ, SJ., J.1

GILDA ELEPANO PICO, ETAL.,

Promulgated on:

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l[------------------------------------------------------------------------------RESOLUTION

CABOTAJE-TANG, P.J.:

For resolution is the prosecution's "Manifestation. with MotiontoAdmit Amended Information"? dated July 5,2018.

In its aforesaid manifestation and motion, the prosecutionmanifests that it sought authority from then OmbudspersonConchita Carpio Morales to effect amendments to the Informationdated March 7, 2018, charging the herein accused with the crime ofviolation of Section 3 (g) of Republic Act (R.A.) No. 3019.Ombudsperson Morales granted the said authority to amend on

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As per Administrative Order No. 262-2018 dated April 30, 2018pp. 910-924, Vol. I, Record.

RESOLUTIONPeople vs. PICa, ET AL.SB-18-CRM-0383x----------------------------------------------------x

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June 26, 2018, as evidenced by copies of the prosecution'sMemorandum dated June 18, 2018,3 and the approved AmendedInformation dated June 20,2018.4

The original Information charging the herein accused with thecrime of violation of Section 3 (g) of R.A. No. 3019 reads:

The undersigned Graft Investigation and Prosecution Officerof the Office of the Ombudsman hereby accuses GILDAELEPANO PICO, ROBERTO SANDOVALVERGARA, CARELDOMINGO HALOG, MARGARITO B. TEVES, MARIANITODINEROS ROQUE, PATRICIAP. RUALO-BELLO, EDUARDOC. NOLASCO,ALBERT C. BALINGIT,GEORGE J. REGALADOand CYRILC. DEL CALLARof violating Section 3 (g), R.A. No.3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, committed as follows:

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That on or about the 2nd day of December2008, or sometime prior or subsequent thereto, inthe City of Manila, and within the jurisdiction ofthis Honorable Court, the above-named accused,GILDA ELEPANO PICO,· a high ranking publicofficial, being the President and Chief ExecutiveOfficer of the Land Bank of the Philippines (LBP),together with ROBERTO SANDOVALVERGARA,CAREL DOMINGO HALOG, MARGARITO B.TEVES, MARIANITODINEROS ROQUE, PATRICIAP. RUALO-BELLO, EDUARDO C. NOLASCO,ALBERT C. BALINGIT, GEORGE J. REGALADOand CYRIL C. DEL CALLAR,members of the LBPBoard of Directors, acting as such and committingthe offense in relation to their official duties andtaking advantage of their official positions,conspiring, confederating and mutually helpingone another, did then and there, willfully,unlawfully and criminally enter into a manifestlyand grossly disadvantageous contract ortransaction with Global 5000, a corporationorganized under the existing laws of thePhilippines, by causing and/ or approving theShare Purchase Agreement (SPA) for the sale ofthe 46,596,596 shares of stock of Meralco in favorof Global 5000 at Php90.00 per share for a total of

c:/p. 915, idp. 921. id

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RESOLUTIONPeople vs. PICO, ET AL.SB-18-CRM-0383x----------------------------------------------------x

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Php4,193,693,640.00 plus an additional fixedterm interest of Php553,847,140.06, whichcontract contains stipulations detrimental to theGovernment, namely: 1) all dividends declared byMeralco in relation to the entire 46,596,596shares of stocks subject of the SPAshall accrue infavor of Global 5000 only upon tender of only 200/0down payment; 2) all cash dividends of the46,596,596 shares of stocks subject of the SPAdeclared by Meralco prior to the full payment bythe Buyer of the Third Installment shall beautomatically applied as partial payment of theremaining balance of the Consideration; 3) thevoting rights of the 46,596,596 shares of stockssubject of the SPA shall accrue in favor of Global5000 only upon tender of 20% down payment; 4)the fixed term interest in the amount ofPhp553,847,140.06 fixed term interest stipulatedin the SPA covers only 13.210/0of the purchaseprice spread over a 3 years or 4.4% interest perannum, far below the legal interest of 6%; and 5)the extension of the date of payment for the downpayment from 15 days as approved by the LBPBoard to 30 days in the SPAand the curing periodof 12 months for the first and second installmentdates and the 30-day grace period for the lastinstallment, which the LBPBoard did not approve,to the damage and prejudice of the Government.

CONTRARY TO LAW. 5

The prosecution prays for the amendment of the saidInformation. to read as follows:

The undersigned Graft Investigation and ProsecutionOfficer of the Office of the Ombudsman hereby accusesGILDA ELEPANO PICO, ROBERTO SANDOVALVERGARA,CAREL DOMINGO HALOG, MARGARITO B. TEVES,MARIANITODINEROSROQUE, PATRICIAP. RUALO-BELLO,EDUARDOC. NOLASCO,ALBERTC. BALINGIT,GEORGE J.REGALADOand CYRILC. DELCALLARof violating Section 3(g),R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:

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.1 A ~

RESOLUTIONPeople vs. PICO, ET AL.SB-18-CRM -0383x----------------------------------------------------x

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That on or about the 2nd day of December2008, or sometime prior or subsequent thereto, inthe City of Manila, and within the jurisdiction ofthe this Honorable Court, the above-namedaccused, GILDAELEPANOPICO, a high rankingpublic official, being the President and ChiefExecutive Officer of the Land Bank of thePhilippines (LBP),upon the recommendation ofROBERTO SANDOVALVERGARA, First Vice-President Treasury Group, and CARELDOMINGO HALOG, Vice-President, LocalCurrency Department, with the prior approvalof MARGARITOB. TEVES, MARIANITODINEROSROQUE, PATRICIAP. RUALO-BELLO,EDUARDOC. NOLASCO,ALBERTC. BALINGIT,GEORGE J.REGALADOand CYRILC. DEL CALLAR,membersof the LBP Board of Directors, all acting as suchand committing the offense in relation to theirofficial duties and taking advantage of their officialpositions, conspiring, confederating and mutuallyhelping one another, did then and there, willfully,unlawfully and criminally enter into a SharePurchase Agreement (~) in behalf of LBPwith Global 5000 Investment Inc., a corporationorganized under the existing laws of thePhilippines, for the sale of the 46,596,596 sharesof stock of LBPin Meralco in favor ofGlobal5000Investment Inc. at Php90.00 per share for a totalof Php4,193,693,640.00 plus an additional f1Xedterm interest of Php553,847, 140.06, which SPAismanifestly and grossly disadvantageous to theGovernment, based on the following terms andstipulations: 1) any and all dividends inwhatever form, and other benefits declared byMeralco in relation to the entire 46,596,596shares of stocks subject of the SPA shall accrue infavor of Global 5000 Investment Inc. upontender of only 20% down payment; 2) all cashdividends from the 46,596,596 shares of stockssubject of the SPAdeclared by Meralco prior to thefull payment by the Buyer of the ThirdInstallment, shall be automatically applied aspartial payment of the remaining balance of theConsideration; 3) the voting rights of the46,596,596 shares of stocks subject of the SPA

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RESOLUTIONPeople vs. PICO, ET AL.SB-18-CRM-0383x----------------------------------------------------x

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shall also accrue in favor of Global 5000Investment Inc. upon tender of only 20% downpayment; 4) the fixed term interest in the amountof Php553,847,140.06 stipulated in the SPAcovers only 13.21% of the purchase price spreadover a 3 year period or 4.40% interest perannum, far below the legal interest of 6%; and 5)giving and Ior allowing the extension of the dateof payment for the down payment from 15 days asapproved by the LBPBoard to 30 days in the SPAand the curing period of 12 months for the firstand second installment dates and the 30-daygrace period for the last installment, withoutprior LBP Board approval, to the damage andprejudice of the Government.

CONTRARY TO LAW.6

During the hearing on the said manifestation and motion onJuly 13, 2018, the Court gave the herein accused five (5)days fromreceipt of the Court's Order within which to file their respectivecomments and/ or objections to the subject motion."

Accused Margarito B. Teves filed a Comment (Re: Order of July13, 2018) 8 dated August 13, 2018, where he prays for the outrightdenial of the motion of the prosecution to amend the subjectInformation and to quash the same. According to accused Teves, theamendments sought to be made by the prosecution in theInformation "lays even more bare the fact that accused Teves shouldnever have been made to answer, more so indicted, in this casebased on the Arias Doctrine..."9

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Accused Teves, likewise, beseeches the Court "to take judicialnotice of the fact, inter alia, that the sale was never consummated atall and that the Meralco shares had actually remained with LandBank (and no share, dividend, or voting right was ever conveyed orconferred by Land Bank) because of prior and intervening legaldevelopments." 10 He further avers that from "such non-consummation arose a prejudicial question because on July 3, 2014,

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npp. 921-923, Vol. I, RecordOrder dated July 13,2018; p. 4, Volume 11, Recordp. 70, idPar. 1, p. 1, Accused Teves's Comment; p. 70, idPar. 6, p. 2, id; p. 71, id

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prior to the October 20, 2014 Complaint of the Field InvestigationOffice of the Office of the Ombudsman, Global 5000 Investment, Inc.,filed a civil suit versus Land Bank to enforce the SPA XXX.ll That civilcase is a prejudicial question which necessitates the suspension ofany criminal proceeding, pursuant to Section 7, Rule 111 of the Rulesof Court."12

On August 24, 2018, accused Pico and Halog filed theirOpposition (Re: Manifestation and Motion to Admit AmendedInformation) dated August 13, 2018 with the Court.P Therein, bothaccused argue that the amendment of the Information should bedenied on the followinggrounds: (1) the subject information is voidab initio for having been filed after a protracted preliminaryinvestigation which allegedly violated their constitutional right tospeedy disposition of cases; 14 (2) the fact that the prosecution seeksthe amendment of the Information shows that the same was fatallydefective as pointed out by the accused in their prior motions.w (3)assuming without conceding that the allegations in the AmendedInformation are all true, no crime can still be imputed much lessproven, against the accused.

THE COURT'S RULING

The Court finds the subject motion meritorious.

Section 14, Rule 110 of the Revised Rules of Court lays downthe procedure for the amendment of a criminal Information:

Section 14.Amendment or substitution. - A complaintor information may be amended, in form or in substance,without leave of court, at any time before the accused entershis plea. After the plea and during the trial, a formalamendment may only be made with leave of court and when itcan be done without causing prejudice to the rights of theaccused.

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However, any amendment before plea, whichdowngrades the nature of the offense charged in or excludesany accused from the complaint or information, can be made

,id ~Par. 8, id; idp.96,id ~p. 2, Opposition; p. 97, Record, Vo!. IId

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only upon motion by the prosecutor, with notice to theoffended party and with leave of court. The court shall stateits reasons in resolving the motion and copies of its ordershall be furnished all parties, especially the offended party.(n)

If it appears at any time before judgment that a mistakehas been made in charging the proper offense, the court shalldismiss the original complaint or information upon the filingof a new one charging the proper offense in accordance withsection 19, Rule 119, provided the accused shall not beplaced in double jeopardy. The court may require thewitnesses to give bail for their appearance at the trial. (14a)

Based on the first paragraph of the afore-quoted provision, theamendment of the Information, whether as to form or substance, isa matter of right on the part of the prosecution beforearraignment. The prosecution is free to amend the Informationwithout leave of court before arraignment.w The second paragraphof the same provision provides the only limitations to theamendment of an Information prior to a plea. Any amendmentbefore plea, which lessens the gravity of the offense charged and/ orexcludes any of the accused from the complaint or information,must be filed with leave of court and the parties, especially theprivate complainant, shall be duly furnished copies of the orderresolving the motion therefor and explaining the reasons for suchdisposition. 17

In the present case, there is no issue as to the fact that all theaccused have yet to be arraigned and enter a plea. The situationcontemplated in the first sentence of the afore-quoted provisionsquarely applies. The prosecution's motion must be granted as amatter of course.

To be sure, the grounds proffered by the accused in oppositionto the present motion are off-tangent and do not relate to thecircumstances mentioned in the second paragraph of Section 14,Rule 110, which circumscribe the prosecution's right to amend aninformation, whether formally or substantially, prior to a plea.

16 People vs. Dacudao, 170 SCRA 489 (1989)Oscar M. Herrera, Remedial Law Volume IV, 160 (2007 edition)17

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Accused Teves' insistence on his exclusion from the caseunder the Arias doctrine is patently evidentiary in nature and hasno bearing on the propriety of the amendment of the Information.The same may likewise be said of his entreaties for the Court totake judicial notice of the non-consummation of the sale and thealleged existence of a prejudicial question. In the same vein,accused Pico and Halog's arguments are irrelevant in determiningwhether the request for amendment must be granted.

To be clear, however, the Court has ruled solely on the presentincident relating to the amendment of the Information which, ashereinbefore discussed, must be granted. It is not in any waypassing upon the various substantive issues raised by the accusedin their motions which will be resolved at the appropriate time.

WHEREFORE, the Court GRANTS theManifestation with Motion to Admit AmendedAccordingly, the Amended Information is ADMITTED.

prosecution'sInformation.

SO ORDERED.

Quezon City, Metro Manila

~O~APresiding JusticeChairperson

WE CONCUR:

ITO R. FERNANDEZAJsociate Justice