REPUBLIC OF THE PHILIPPINES Sandiganbayan Quezon City Fifth Division PEOPLE OF THE PHILIPPINES, CRIM. CASE NO, 27760 Plaintift, For: Mischief (Article 327 in relation to Article 329, Revised Penal Code) - versus Present: SIGFRIDO TINGA et al. CORTEZ- ESTRADA, Chairman JURADO, AJ. and Accused. DIAZ-BALDOS, AJ. Promulgated AJ. CORTEZ-ESTRADA: Submitted before this Court is the prosecution's “Manifestation and Motion to Withdraw,” * dated June 2: the instant case for lack of probable cause. , 2005, praying for the withdrawal of the information in ‘The records show that on September 30, 2002, the Office of the Ombudsman charged herein accused Sigrifido R. Tinga, Marcelo Serpa Juan y Mendoza, Arsenio Cruz, Sr., Roldan O. Candido, Aniceto Delvo, Rodolfo Tangpuz, Pablito Abila, Gloria Laot and Renato Malonzo with the crime of malicious mischief, defined and penalized under Article 327, in relation to Article 329 of the Revised Penal Code, allegedly committed as follows: “That on January 28, 2002, or sometime prior or subsequent thereto, in the Municipality of Tau g, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Sigrifido R. Tinga, being the Municipal Mayor, Marcelo Serpa Juan y Mendoza, Arsenio Gruz, Sr, Roldan 0 Candido, Aniceto Delvo, Rodolfo Tangpuz, Pabiito Abila, Gloria Laot and Renato Malonzo, Barangsy Kagawads, all public officers of the Municipal Government of Taguig, Metro Manila, while in the performance of their official functions and commiting the oflsnse in relation to their office, conspiring and confederating with one other, cid then and there willfully, unlawfully and feloniously cause ‘damage to the preserty belonging to Jutland Construction and Trading, a juridical ‘entity, by destroying galvanized iron sheets that served as construction perimeter fence as well as by demolishing the foundations and columns of the Mult- Purpose Building with a total value of P 10,000.00 Philippine Currency, to the damage and prejudice of the said owner in the aforesaid amount “CONTRARY TO LAW" we Tmenavonpas iyResolution’ People vs. Tinga, et al, Criminal Case No. 27760 Page -2- On fume 23, 2005, the prosecution filed with this Court the instant “Manifestation and Motion to Withdraw Information”, alleging that on June 2, 2005, the Office of the Ombudsman, through the Deputy Ombudsman for the Military and Other Law Enforcentent Offices, approved the resolution of Assistant Special Prosecutor UI Jesus A. Micael, dated January $1, 2005, recommending the withdrawal of the information in the instant ease; and that in view of the aforesaid resolution, itis moving for the withdrawal of the information. On july 16, 2005, private complainant, Rolando P. Juta, filed his Opposition/Comment(ite: Motion to Withdraw Information), * maintaining that on July 6, 2005, he filed with the Office of the Ombudsman a Motion for Reconsideration of the latter's January 51, 2005 resolution finding no probable cause to indict the accused for the crime of malicious mischief, that the Office of the Ombudsman has yet 10 resolve his aforesaid Motion for Reconsideration; that consistent with the requirements of fair play and due process, this Court should await the resolution of the Office of the Ombudsman regarding his Motion for Reconsideration, He further argues that any dispos:tion of the case rests in the sound discretion of this Court; that there is probable cause taat accused committed the crime of malicious mischief, that accused were motivated by hate, revenge, or ill-motive in destroying the government project subject of this cave considering the existence of a political rivalry between the Tingas and the Cayetanos, who funded the said government project; that accused Serpa Juan and Mayor Tinga participated and conspired in destroying said government project; that the acts of the accused in destroying the said government project was illegal; aud that accused Serpa Juan had no authority to destroy a government project, On September 8, 2005, this Court issued an order ,* holding in abeyance the resolution of the prose.ution’ s Motion to Withdraw the Information, pending action by the Office of the Ombudsman on the Motion for Reconsideration filed by the private complainant, questioning the former’s resolution finding no probable cause to warrant the filing of the present information against the accused. On December 20, 2005, the prosecution tiled @ “Manifestation,” + stating that in an order dated November 25, 2005 of the Office of the Special Prosecutor, duly approved by Special Prosecutor Dennis Villa-Ignacio, the said office has denied the Motion for Reconsideration filed by complainant Rolando P. Juta, for lack of the third element in M how the crime of malicious mischief, Aa, p61 2 id p86 *Id..p. 158Resolution/ People vs. Tinga, et al, Criminal Case No. 27760 Page -3- With the Office of the Ombudsman’s denial of private complainant's Motion for Reconsideration, he prosecution’s “Manifestation and Motion to Withdraw Information” is now ripe for resolution, Afler a careful review of the arguments advanced by the prosecution in its present motion, and the comments and opposition Ihereto of the private complainant, the Court finds the instant motion impressed with merit Accused are being charged with the crime of Malicious Mischief, under Article 327 of the Revised Penal Code, which reads; “Article 327, Who are liable for malicious mischief — Any person who shall delibvrately cause to the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief.” The elements of the above offense are as follows: 1) that the offender deliberately caused damage to the property of another; 2) that such act does not constitute arson or otter crimes involving destruction; and 3) that the damage was caused maliciously by the offender (Caballes vs. Department of Agrarian Reform 168 SCRA 247) In the present case, the Office of the Special Prosecutor found the third element of the offense wanting, In its Resolution dated January 31, 2005, * it stated “The circumstances obtaining in the case at bar clearly show that the actuations of the accused which consequently resulted in the destruction of construction materials owned by the complainant was a culmination of « series of events that started when complainant commenced to execute its obligation under a contract with the DPWH to construct a imulti-purpose building in a public place where public structures already existed which were neither declared condenmed, unusable or unserviceable, “Undoubtedly complainant did not possess the required municipal permits and clearances to build or to demolish the existing structures before 2eginning work on his own project, in violation of the National Building Code, and contrary to COA regulations, “Complainant was cautioned by the local municipal authorities as early as December 6, 2001 to cease and desist from further pursuing the project and demolition work until the proper documentations were obtained, However, as claimed by the complainant himself in his memorandum submitted in this reinvestigation ‘xxx JUTLAND continued working on the multi-purpose building, because they were required by the DPWH to finish said governntent project within 150 — a id, p.28 O opetal, Criminal Case No. 27760 Resolution/ People vs. Page -4- days x x x,’ giving the impression that by reason of time constraints, permits and clearances can be done away with “Compleinant’s allegation that accused deliberately refused to issue the necessary permits nor were they given the opportunity to apply and obtain one remained uncorrohorated. “accuse! succeeded in stopping JUTLAND and proceeded restoration work on the partially destroyed basketball court, children’s park and public toilets “In the course of the repair and restoration work to bring back the basketball court and the children’s playground to its original state the concrete foundations and columns erected by JUTLAND had to be removed and tue iron bars, frameworks, scaffoldings, galvanized iron sheet perimeter fence dismantled to give way to a new conerete fence. Naturally, damages to these structures is inevitable and unavoidable. x Xx “accused were motivated not by hate, revenge or other ill-molive. The only purpose of removing the concrete foundations and columns was tt reconstruct and repair the basketball court , children’s park, public toile!s and concrete stage. As public officers, they acted in pursuit of the general welfare clause of the Local Government Code of 1991, Section 16 “hereof which provide: x x x. “The third element of the offense of malicious mischief , that is “that the act of damaging another’s property be committed merely for the sake of damaging if’ is therefore wanting in this case. “the records of the case are also bereft of any evidence that accused Mayor Sigfrido Tinga was present at the project site on January 18, 2002. the allegation that he ordered and directed the demolition of the structures built by complainant is, as the records show, not only hearsay but also conjectural. “No ill-will oF ill-motive could likewise by ascribed to the rest of the accused who appeared to have acted only upon the direction of accused Serpa Juin, who, as OIC-Municipal Engineer, was officially tasked to undo what complainant has done. “In the carly case of People vs. Siddayao, C.A., 53 OG 8163, the Court ruled that tac defendant is not guilty of malicious mischief when the act of dameging another's property was not prompted by hatred or a desire for revenge or by the mere pleasure of destroying, Here, defendant Siddayao saw two pigs causing damage to his farm. He borrowed the rifle of Garcia who was then with him, and fired twice which wounded’ the two pigs. The court said that at most, he might have incurred liability of purely civil in nature “As the circumstances obtaining in the case at bar negate any element of hate. malice or revenge on the part of the accused, the latter may only be licld civilly liable, The obligation to recompense the complainant for clamages in the amount of P 10,000.00 is only civil in nature.” This Court fully agrees with the above findings of the Otfice of the Special Prosecutor. Il has been regarded the essence of this felony (malicious mischief) that the offender should have not only the general intention to carry out the Felonious act feature common to tl willfut crimes) but that he should act under the impulse of specific desire to inflict injury to another (Quizon vs. The Justice of the Peace of Pampanga, etal, 97 Phil oar A paResolution/ People vs. Tinga, et al, Criminal Case No. 27760 Page -5- In the present case, it is clear that in destroying the galvanized iron shects that served as construction, perimeter fence as well as by demolishing, the foundations and and columns of the ulti-purpose building, defendants did not act out of a malicious desire to cause damaye or injury to the property of private complainant, The demolition of the said s:ructures put up by the private complainant was done because the private complainant erected the said structures without the necessary permits and clearances from the arpropriate authorities, in a public place where other public structures already existed. ‘The evidence will also indicate that accused Marcelo Serpa Juan, Municipal Engineer of the Municipality of Taguig, sent several notices, dated December 6, 13, and December 20, 20016, addressed to Jutland Construction, ordering the latler to stop the construction of the multi-purpose building until it has obtained all the necessary permits, However, Jutland Construction, notwithstanding the fact that it failed to obtain such emits, proceeded with the said construction. Hence, accused had no other recourse but to order the demolition of the structures crected by private complainant in order to restore the original structures that were destroyed by the private complainant when the latter slarted the construction of the multi-purpose building without the necessary permits and clearances. In both his Motion for Reconsideration (Re: Resolution dated January 31, 2005)’, and his Oppesition/Comment (Re: Motion to Withdraw Information),§ private complainant ias'sts that accused were motivated by hate, revenge, ot ill- motive in destroying the government project subject of this case because of the existence of a political rivalry between the Tingas and the Cayetanos, who funded the said goverment project. Thi n is clearly without basis, Other than private allegatic complainant’s bare assertion of the existence of a political rivalry between the Tingas and the Cayetanos, we find the records clearly devoid of any proof to support such claim, Assuming argvendo that such rivalry exists, the records ave bereft of any indication that the dismantling or destruction of the subject government project was motivated by such political rivalry. As found by the Office of the Special Prosecutor, in their November 25, 005 Order, denying the private complainant’s Motion for Reconsideration “To say that accused were motivated by hate, revenge or ill- motive is more invagined than real, Political rivalries and parlisanships are common ingredients in our political selting, Suspicion of political y 18" and “C* of Marcelo Serpa luan’s Counter Affidavit, Record, Vol. 1, pp ® atached as Annexes * 196-198 * Record, Vol. 2, p 41 ae @ yyResolution/ People vs. linga, et al , Criminal Case No. 27760 Page -6 motivations on otherwise regular or normal actuations is a common occurrence amongst loyal followers of politicians and their allies, “To impute that the acts committed by the accused were due to their political autred against their political opponents is based more on political bias than hatd facts and evidence.” In fine, Without any showing that accused acted under the impulse of specific desire to inflict injury to another, they cannot be held liable for the offense of malicious mischief, WHEREFORE, premises considered, the instant “Manifestation and Motion to Withdraw Information” is hereby granted. ‘The cash bonds posted by all the accused lo obtain theit provisional liberty are hereby ordered retuened to them, subject to the usual accounting and auditing procedures, ‘The Hold Departure Order issued against the same accused is likewise ordered lifted, SO ORDERED, Quezon City, l, / - eee he, Gestion’? hi SSTRACA Chairman nuary 4, 2006. WE CONCUR Ab hot Perea, PA, hada, ROLAND B. JURADO ERESITA V. DI BALDOS Associate justice Associate Justice