Republic of the Philippines

COURT OF APPEALS
Manila
ELEVENTH DIVISION

ATTY. ANICETO Q. SANCHEZ,

JR. and SOLOMON SUMPO,
Petitioners,
CA-G.R. SP No. 14129
-versus-

DEPARTMENT OF FINANCE -
REVENUE INTEGRITY
PROTECTION SERVICE (DOF-
RIPS), represented by Atty.
Esteban Pancho B. Garing,
Crispin A. Velarde and Agapito
Guarin,
Respondents.

PETITIONER’S MEMORANDUM

Above-named Respondents–Appellants Atty. Aniceto Q. Sanchez, Jr.

and Solomon Sumpo, through the undersigned counsel, and unto the Honorable
Court, hereby most respectfully submit this Memorandum in compliance with the
Honorable Court’s Resolution promulgated on July 29, 2016.

Statement of the Case

This petition for review (with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction) seeks to set aside and
reverse the Decision dated January 25, 2013 and Order dated January 21, 2015
issued by the Office of the Ombudsman finding herein Petitioners guilty of grave
misconduct and serious dishonesty, and imposing a penalty of dismissal from the
Service with forfeiture of benefits.

Statement of Facts and Proceedings

For purposes of systematic documentation and proper monitoring, all

import declarations made with the Bureau of Customs for the purpose of paying
and settling the proper import duties and taxes for the imported items are
accordingly covered and assigned with separate and individual “Import Entry
Numbers” (“Import Entry Nos.”).

Under the provision of Section 1302 of the Tariff and Customs Code of the
Philippines, it is mandated that:

1
 “all imported articles xxx shall be subject to a
formal or informal entry”; and that “xxx personal xx
effects or articles, not in commercial quantity, xxx for
personal use (e.g. such as perso-nally owned vehicles)
shall be cleared on an informal entry whenever duty, tax
or other charges are collectible” (Please see Section
1302 of the Tariff and Customs Code of the Philippines,
as amended by R.A. No. 9135).

In other words, import declarations with the Bureau of Customs are

accordingly assigned with individual “Import Entry Nos.” and the denomination
of its “Import Entry” (i.e. whether it would be an “Formal Import Entry No.” or
an “Informal Import Entry No.”) greatly depends on the nature of the subject
imported item or items being declared for processing and payment.

Thus, if it is ‘for personal use’ and ‘not in commercial quantity’, it is

cleared under an “Informal Entry” and accordingly assigned a “Informal
Import Entry No.”. On the other hand, if the declared imported items or items
to be imported are ‘in commercial quan-tity’ and/or ‘not for personal use’, then,
it is cleared under a “Formal Entry” and accordingly assigned an “Formal
Import Entry No.”.

Sometime in 2002 or 2003, Mr. Aurelio Dungo imported a used (second

hand) BMW car [or even much previous to this year]. The car was ‘slipped into’
the country without the proper payments of import duties and taxes thereon. In
February, 2003, Mr. Dungo availed of the amnesty program provided under
Customs Memorandum Order (CMO) No. 1, Series of 2003 by filing with the
Bureau of Customs of the Port of Zamboanga (BOC-Port of Zamboanga) an
application for “Clearance to Register Vehicle with the LTO” in order that proper
import duties and taxes for his said imported used BMW car could be paid with
the BOC.

The said clearance is required and needed as a requisite and pre-condition

for the initial registration or renewal of registration of his vehicle with the Land
Transportation Office (LTO) under CMO No. 1, Series of 2003.

His application was caused to be processed. And accordingly, on February

21, 2003, “Informal Import Entry No. 087-03” [dated February 21, 2003] was
issued and assigned as covering entry for his application and declaration. The
corresponding proper charges, taxes and duties for the vehicle’s importation was
then subsequently paid and settled by him (Mr. Dungo) with the Bureau of
Customs, paying the same to the BOC Cashier. The payment was covered by
Official Receipt No. 97750642 and was also issued with a covering ‘Certificate
of Payment’1 bearing Serial No. 02551692.

Sometime about the same period, one Ms. Catherine Jardin, who also
1
See Certificate of Payment attached to Respondents Sumpo’s and Sanchez, Jr.’s Counter-
Affidavits as Annex “A” and similarly attached as Annex “G” to the Joint Complaint-Affidavit
of the Complainants

2
managed to ‘slip into’ the country a used (second hand) Mercedez Benz car
without payment of proper customs and import duties and taxes thereon, also took
the opportunity of availing of the amnesty provided under Customs Memo-
randum Order (CMO) No. 1, Series of 2003 in order to “legitimize” her impor-
tation. She hence filed also with the BOC-Port of Zamboanga an application for
“Clearance to Register Vehicle with the LTO” under CMO No. 1, Series of 2003 –
so that her vehicle could then be registered with the LTO. Her application was
similarly caused to be processed.

Accordingly, on the same day, February 21, 2003, “Informal Import Entry
No. 086-03” [dated February 21, 2003] was also issued and assigned as covering
entry for her application and declaration. (Note: It was similarly assigned an
“Informal Entry No.” –same as that of Mr. Dungo’s – precisely for the same
reason that the subject matter is a “motor vehicle [which obviously is for
“personal use” and ‘not in commercial quantity’]). Thereafter, the proper import
charges, taxes and duties were also paid by Ms. Jardin. The payment was covered
by Official Receipt No. 97750624 and was also consequently issued with a
covering ‘Certificate of Payment’2 bearing Serial No. 02222551683.

Thereafter, sometime on June 2003, Japcor Auto Supply caused the

importation of the following articles from Japan, to wit: “Eighteen (18) sets of
Used Driving Assembly; Eighteen (18) sets of Used Cut Chassis with Rear Axle;
One Hundred Thirty (130) pieces of Used Wheel Rims; Thirty Five (35) pieces of
Used Propeller Shaft; Eighteen (18) pieces of Used Fuel Tank; One (1) unit of
Used TCM Wheel Loader 75III C/#: 4073B368JAC; One (1) unit of Used
Gasoline Engine; and One (1) unit of Used Diesel Engine”.

The company then engaged the services of one Albert Abanilla, a licensed
customs broker, for the purpose of representing the company and facilitating and
causing the processing of all pertinent papers, documents and effects relative to
the foregoing importation of used vehicle parts by the company.

Then, on June 23, 2003, Mr. Abanilla filed an entry with the concerned
offices of the BOC–Port of Zamboanga for revenue declaration and for authority
of entry and permission for the company to receive and retrieve such imported
matters through the Port of Zamboanga, and for which the office (i.e. Bureau of
Customs, Port of Zamboanga) issued and assigned “Formal Import Entry (FC)
No. 086-03” (dated June 23, 2003) for the afore-mentioned declaration and
importation. (Note: The importation was assigned a “Formal Entry No.”
precisely because the subject of the importation is in commercial quantities and
are not intended merely for personal use).

Sometime about the same period, Mega Plywood Corporation also caused
the importation of the following item/s for its use in the manufacturing of finished
products – to wit: “some One Thousand Nine Hundred Fifty Eight and Seven
2
See Certificate of Payment attached to Respondents Sumpo’s and Sanchez, Jr.’s Counter-
Affidavits as Annex “B” and similarly attached as Annex “H” to the Joint Complaint-Affidavit
of the Complainants

3
Hundred Two of a Thousandth (1,958.702) cubic meter at 914 pallets of
Coniferous Radiata Pinewood Rotary Cut Corestock, bearing a gross weight of
Eight Hundred Twenty Two Thousand Six Hun-dred Fifty Five (822,655)
kilograms” – imported by the company from New Zealand. On June 25, 2003,
the company filed an entry with the concerned offices of the Bureau of Customs,
Port of Zamboanga for revenue declaration and for authority of entry and per-
mission for the company to receive and retrieve such imported matters at the Port
of Zamboanga, and for which the office (i.e. Bureau of Customs, Port of
Zamboanga) issued and assigned “Formal Import Formal Entry (FC) No. 087-
03” (dated June 25, 2003) for the aforementioned declaration and importation.
(Note: For the same reason that the subject of the importation is in commercial
quantities and are not intended merely for personal use, the importation was
assigned a “Formal Entry No.”).

Sometime thereafter, Complainants apparently went on a “fishing

expedition” for supposed “irregularities” in the BOC’s Port of Zamboanga –
perhaps checking out the papers and documents on file at the Port’s different
offices. They apparently came across the Certificates of Payment issued to:

Mr. Dungo - Certificate of Payment bearing Serial No. 02551692

Mr. Jardin - Certificate of Payment bearing Serial No. 02222551683

As it is, written/typewritten on the face of Certificate of Payment No.

02551692 is the term “Informal Entry No. 0087-03” and on the face of
Certificate of Payment No. 02222551683 the term “Informal Entry No. 0086-
03” – indicating that the corresponding payments are respectively for “Informal
Import Entries Nos. 0087-03” and “Nos. 0086-03”.

Thus, the Respondents are now claiming that there was allegedly another
importation other than that of the Mega Plywood Corporation which was also
assigned with “Import Entry No. 087-03” and that similarly, there was allegedly
another import transaction which was also assigned with and covered by “Import
Entry No. 086-03” other than that of Japcor Auto Parts’ importation – thus
implying that these two importations could be the ones being covered by same
“INFORMAL Import Entries Nos. 086–03 and 087–03” and not the vehicles of
Mr. Dungo and Ms. Jardin.

In January 25, 2013, the Office of the Ombudsman issued a decision

finding herein Petitioners guilty of Grave Misconduct and Serious Dishonesty and
imposed upon them the penalty of Dismissal from the Service. In January 21,
2015, the Office of the Ombudsman denied the motion for reconsideration filed
by herein Petitioners. Thus, this instant case.

4
 Issues

(i)
Whether or not the failure of herein Petitioners to produce the copies of the
Informal Entries constitute as substantial evidence to support the conclusions
of the Ombudsman in finding that Petitioners are guilty of Grave
Misconduct and Serious Dishonesty

(ii)
Whether or not the presumption that herein Respondents performed
their duties regularly may be set aside due to the opposing party’s inability
to present evidence to support their accusations.

(iii)
Whether or not it is proper that the Decisions of the Office of the
Ombudsman in Administrative Cases should be immediately executory
regardless of the nature of the penalty

DISCUSSIONS/ARGUMENTS

(i) The Office of the Ombudsman GRAVELY

ERRED when it failed to realize and appreciate
that it actually has no ‘substantial evidence’
against the herein Petitioners based on the
following:

1) There is no evidence to prove that the alleged

inexistence of Informal Entry Nos. 087-03 and 086-03
was due to herein Petitioners’ acts of dishonesty and
grave misconduct in the performance of their duties.

According to the assailed Decision of the Office of the Ombudsman,

Petitioner’s failure to produce the documents (Informal Entry Nos. 86-03 and
87-03) are shallow and utterly ridiculous. This is to the effect that the mere
absence of Informal Entry Nos. 86-03 and 87-03 became the basis of the findings
of guilt by the Office of the Ombudsman, as if herein Petitioners are to be blamed
for the same. In fact, a perusal of the Decision of the Office of the Ombudsman
would show that the Office of the Ombudsman’s main thrust are the following:

a) That it seems that BOC-Zamboanga “has no

records of the alleged Informal Entries Nos. 86-03 and
87-03” –as certified by Ms. Darwisha J. Schuck, Chief of
the Assessment Division3; And that “it is quite

3
Pages 14 to 15 of the Decision dated January 25, 2013

5
 unbelievable that copies of the logbook entries for
Formal Entries 086-03 and 087-03 existed while
logbook entries for the imported luxury vehicles did
not”4; That “it is highly improbable that not a single
document relating to the importation of the subject
luxury vehicles, other than the CPs and ORs, exists at the
Office of the Liquidation and Billing Unit”5;

b) That the ledger provided by the Assessment

Division showed that Importation Entries 086-03 and
087-03 issued in February 2003 refer to the respective
importations of Z-Ply Sales and Distribution Center and
of Mubin Daud6;

c) That “substantial evidence” purportedly exists that

“spurious import entries were utilized by the
Respondents in order to secure the registration of the
subject luxury vehicles without paying the appropriate
taxes and duties to the government”7;

d) That “it is provided under CMO No. 17-99 that

used vehicles must be covered by an Import Authority
duly issued by the Department of Trade and Industry,
Bureau of Import Services (DTI-BIS)”; That however,
“the DTI-BIS thru its Director, Luis M. Catibayan,
certified that, based on records on file, the said office has
not issued an authority to import the subject vehicles”;
“Hence, the importation of the luxury vehicles violates
CMO No. 17-99 which strongly mandates that if the
imported item is a used vehicle, import authority from
the DTI-BIS is needed before the BOC can process the
corresponding CP”8;

e) That the fact that the VICMU did not return the
pertinent papers back to BOC-Zamboanga “does not
necessarily mean that everything was in order and
proper”9; That when the CPs were forwarded to the
VICMU, “no supporting papers, more so any copy of the
covering Informal Entries for the subject vehicles were

4
Page 15 of the Decision dated January 25, 2013
5
Pages 15 to 16 of the Decision dated January 25, 2013
6
Page 15 of the Decision dated January 25, 2013
7
Pages 18 of the Decision dated January 25, 2013
8
Page 19 to 20 of the Decision dated January 25, 2013
9
Page 9 of the Order dated January 21, 2015

6
 attached”10; and That in fine, there was hence “substantial
evidence” against the Respondents-Appellants11.

Contrary to what herein Respondent’s want to appear, the root of herein

Petitioners’ argument was not “brazenly” hinged on the mere presumption that
the failure on the part of herein Petitioners to produce the documents pertaining
to the Informal Entry Nos. 086-03 and 087-03 was only on the possibility of
“poor filing system” or that the Entries could have been deliberately “stashed
away” by an “irate” co-employee”.

In fact, even the Bureau of Customs XITH Collection District, Port of

Zamboanga would certify, as it has certified, that there are no documents
available pertaining to Informal Entries bearing the following number:

 086-03
 087-03
 082-03
 084-03
 085-03
 086-03
 088-03
 089-03

(Attached hereto as Annex “A” is a copy of the Certification dated

September 5, 2016 issued by the Bureau of Customs XITH Collection District,
Port of Zamboanga, and made integral part hereof.)

In fine, what herein Petitioners are saying is that it is unfair and

unconstitutional to be submitted to litigation, while simultaneously be asked to
produce implicating evidence against you, which the complaining party cannot
find, in order to be used against the one subject of litigation. This is not how the
law works.

The Supreme Court is clear that “Even if the defense of the appellant may
be weak, the same is inconsequential if, in the first place, the prosecution failed
to discharge the onus of his identity and culpability. Conviction must be based
on the strength of the prosecution and not on the weakness of the defense, i.e.,
the obligation is upon the shoulders of the prosecution to prove the guilt xxx
and not the xxx [Respondent] to prove his innocence. The prosecution’s job is
to prove that the accused is guilty xxx. Thus, when the evidence for the
prosecution is insufficient xxx, it must be rejected and the [Respondent be]
absolved xxx at once”12.

10
Page 10 of the Order dated January 21, 2015
11
over-all tenor and substance of the herein-assailed Decision dated January 25, 2013 and Order
dated January 21, 2015
12
People of the Philippines vs. Cesar Galvez; G.R. No. 157221, 2007 Mar 30, 3rd Division

7
 Applied in this case, it is incumbent on the Complainant, the prosecution
and the Office of the Ombudsman –as the burden is upon them –to positively
produce and present Entries Nos. 86-03 and 87-03 showing that such entries
indeed covered other importations not that of Mr. Dungo’s and Ms. Jardin’s
vehicles, and not just simply content themselves with “conjectures” and
“presumptions” in the absence of such documents.

As such, herein Petitioners cannot be faulted by their failure to produce

such documents because of the following reasons:

1) Petitioners’ (Aniceto Sanchez, Jr.’s and Solomon Sumpo’s) official

duties do not involve nor concern taking custody of subject documents
i.e. Informal Entry Nos. 086-03 and 087-03. Neither do they have any
duty to keep copies thereof.

2) As already stated in the previous pleadings, the Respondent failed to

note that the process which ultimately leads to the issuance of the
Certificates of Payment involves various procedure concerning almost
all of the office divisions, units and offices at the Port of Zamboanga.

In fact, a perusal of Customs Memorandum Order (CMO) No. 1, Series

2003, would exemplify this argument. That is:

a) First, the process begins at the office of the District

Collector [or at the office of any subordinate officer
designated by the Collector for the matter] – where
the vehicle owner’s ‘Application for Clearance to
Register Vehicle with the LTO’ is filed with and
received by the Office. In some cases, ‘Application
xxx’ is filed directly with the Office of the
Commissioner –in which case, the same is transmitted
to the Office of the District Collector concerned
together with the “authority for [the] processing”
there-of.

b) The Office of the District Collector then issues a

‘Warrant of Seizure and Detention’ for the subject
vehicle.

c) Thereafter, the vehicle owner secures a BC Form No.

177 (Informal Importation Entry Form) from the
Office of the Cashier and fills up the same. The
Office of the Collector then makes a marginal note on
the Informal Importation Entry (BC Form No. 177) –
manifesting “approval for processing”.

d) The documents are then forwarded to the Assessment

Division.

8
e) A Document Processor, who is under the Assessment
Division, would then assign and impress on the
Informal Importation Entry (BC Form No. 177) a
number series therefor. Said Document Processor
would then forward the papers to the Chief of the
Assessment Division.
f) The Chief of the Assessment Division would then
assign the matter to an Examiner for the examination
of the subject vehicle.

g) Only then will the Examiner examine the vehicle and

thereafter, the Examiner will file and execute an
assessment report thereon. All the papers, together
with the assess-ment report executed by the Examiner,
would then be turned over back to the Assessment
Office.

h) The papers would then find its way to the desk of the
Chief of the Assessment Division for review. The
Chief of the Assessment Division would then review
all the papers, including the assessment report filed
and executed by the Exa-miner.

i) The procedure gives the said office/officer the duty

and responsibility to review and approve the
assessment made by the Examiner, as well as the
power to overrule and correct the Examiner’s findings
and assessment.

j) If said officer finds the findings and all papers and

documents in order, he would forward the papers and
documents to the Deputy Collector for Assessment for
final review and for approval of payment.

k) The Deputy Collector for Assessment, if it finds the

papers in order, then approves the same for payment,
as well as executes [ahead of time] the ‘1st
Indorsement’-covering letter for the indorsement of
the Certificate of Payment and other pertinent
documents to the Chief of the Warrant and Motor
Vehicle Office of the Office of the Commissioner in
Manila (WMVO-BOC-Office of the Commissioner) –
which is now called the VICMU.

l) The documents and papers would then be forwarded

to the Office of the Cashier for payment, together
with the ‘1st Indorsement’-covering letter.

9
 m) Payment is then made by the consignee or vehicle
owner to the Office of the Cashier. The Cashier then
issues an Official Receipt and a Certificate of
Payment. Thereafter, the documents and papers
are sorted out by sets for the purpose of dissemination
and for-warding to the proper ends.

n) Then, these sets of papers and documents are then so

forwarded to these ends (i.e. that is: the Official
Receipt –to the to the con-signee/vehicle owner; the
Certificate of Payment and other pertinent papers,
together with the ‘1st Indorsement’-covering letter –to
the WMVO-BOC-Office of the Commissioner in
Manila [now the VICMU]; the first copy of BC
Form No. 177 [gray] –to the Billing and Liquidation
Section (BLS); 2nd copy [green] –to the Cargo
Control Division; 3rd copy [yellow] –to the
consignee/vehicle owner; 4th copy [blue] –to the
Document Processor; and machine copies only for
the Resident Auditor and the Customs Broker).

In fine, Examiner merely examines the vehicle and renders an

assessment report, and cannot examine a particular vehicle without being so
assigned by the Chief of the Assessment Division; The Chief of the Assessment
Division checks and reviews first the papers and documents, as well as the
Examiner’s assessment report; that it is the Chief of the Assessment Division
who forwards all papers and documents to the Office of the Deputy Collector for
Assessment; the Deputy Collector for Assessment merely reviews the
documents and papers, as well as approves the assessment for payment; and
that after the approval for payment, the papers and documents are then forwarded
to the Cashier and that said documents and papers would not anymore find its
way back to the Office of the Deputy Collector for Assessment.

Besides, it is most questionable that only herein Petitioners were impleaded

in the instant case when in fact there were other personnel who were involved in
the process of handling Informal Entry No. 087-03 and 086-03, such as, but not
limited to:

a) Commissioner Antonio M. Bernardo who sits as the

Commissioner of the Bureau (Office of the
Commissioner).

b) Then District Collector Marietta Zamoranos who

was the District Collector for the Port of Zamboanga.

c) Chief of the Assessment Division,

10
 d) Document Processor, as well as those numbers of
personnel at the Assessment Division who no less also
acted officially on the subject transactions (re: vehicles
of Mr. Dungo and Ms. Jardin).

Furthermore, even the Honorable Solicitor General’s Comment dated

March 28, 2016 acknowledges that:

a) The CPs were forwarded to Jaime Maglipon, Chief of Warrant and

Motor Vehicle Office;
b) Three days thereafter, Maglipon forwarded the CPs to Gen. Roberto
Lastimoso, then Assistant Secretary, LTO, through Ms. Mercedita E.
Gutierrez, Chief, Registration Section.

It is well to remember that “In administrative proceedings, the quantum of

proof necessary for a finding of guilt is “substantial evidence” or such relevant
evidence as a reasonable mind may accept as adequate to support a conclusion.
In addition, the complainant has the burden of proving by substantial evidence
the allegations in the complaint. In the absence of contrary evidence, what will
prevail is the presumption that respondent has regularly performed his official
duties, as in this case. This is so in the instant case”13 (JOSEFINA LIBUIT-
LEWIS versus LOIDA P. MORALEJO; A.M. No. P-06-2229 [Formerly OCA-IPI
No. 06-2402-P], 2007 Jan 31; 2nd Division; citing “Ebero v. Camposano”, A.M.
No. P-04-1792, 12 March 2004, 425 SCRA 420, 425).

(ii) The presumption that herein

Respondents performed their duties
regularly cannot be simply set aside due to
the opposing party’s inability to present
evidence to support their accusations. Such
burden does not rest on the part of herein
Petitioners.

On the contrary, and with all due respect, this instant case has from the
very beginning misleading and off tangent to the Petitioner’s disfavor. The
statement of facts lacks material information as to the true nature of the case, to
the effect that there is a clear deviation from the true issue of the case.

To point out, the Comment dated March 28, 2016 merely stated, among
others, that:

“The CPs indicated that the subject vehicles were covered by

Import Entry Nos. 087-03 and 086-03, both dated February 21,
2003.

13
Libuit-Lewis vs. Moralejo; A.M. NO. P-06-2229

11
 However, official records reveal that Import Entry No. 086-63
was issued by the BOC to JAPCOR Auto Supply (Japcor) covering
used truck parts; while Enty No. 087-03 was issued to Mega
Plywood Corporation (Mega Plywood) covering plywood land
other materials.

At the time of the issuance of the subject CPs on February 21,

2003, the aforementioned Import Entry Nos. 086-03 and 087-03
were not yet in existence inasmuch as the true entries were made
only on June 23 and 25, 2003, respectively.” (See page 2 and 3 of
the Comment dated March 28, 2016)

The same is misleading because the subject Import Entries which pertained
to the vehicles were INFORMAL ENTRIES, and the Import Entries which
pertained to JAPCOR and Mega Plywood were FORMAL ENTRIES.

Moreover, the subject transactions (re: vehicles of Mr. Dungo and Ms.
Jardin) are deemed to be regular and in order.

Note that the subject Certificates of Payment or the pertinent papers were
never turned over by the VICMU/WMVO-BOC-O back to the BOC-Port of
Zamboanga for review or reassessment. Pursuant to Customs Memorandum
Order (CMO) No. 15, Series of 2003, it is mandated that the VICMU (formerly
the WMVO-BOC-Office of the Commissioner) are purposely empowered “to
ensure compliance of all requirements of the Tariff and Customs Code (TCCP)
and other related laws”14 and to “(C)ause the review/assessment by the port/unit
whenever the valuation or appraisal appears to be non-compliant with existing
rules and regulations”15; and, as such, “shall, upon receipt of the Certificate of
Payment, cause the transmittal of the same to the LTO, unless, in its judgment, a
review of reassessment is warranted”16. “In case of the latter, it shall return the
Certificate of Payment to the originating port/unit for such review or reassess-
ment”17 and “(U)pon receipt of the result of the review/reassessment, the VICMU
may accept the same and correspondingly transmit the Certificate of Payment to
the LTO or endorse the same to the appropriate BOC units for further review
and/or appropriate action”18.

Consequently, the Certificates of Payment for the subject motor vehicles,

ultimately proves that Informal Entries Nos. 086-032 and 087-03 exist, at the
very least, at the time the subject CPs were issued; and that they were issued for
the transactions entered by Mr. Dungo and Ms. Jardin with the BOC-Port of
Zamboanga relative to their respective subject vehicles. Otherwise, there will be
no sense in issuing the Certificates of Payment (CP) bearing Nos. 022551692 and
02551683.

14
See Section 3, sub-paragraph 3.2.3 of CMO No. 15, Series of 2003
15
See Section 3, sub-paragraph 3.2.4 of CMO No. 15, Series of 2003
16
See Section 4, sub-paragraph 4.3 of CMO No. 15, Series of 2003
17
See Section 4, sub-paragraph 4.3 of CMO No. 15, Series of 2003
18
See Section 4, sub-paragraph 4.4 of CMO No. 15, Series of 2003

12
 In any case, the burden does not rest on the part of herein Petitioners to
prove that there was irregularity, when there are already conclusive pieces of
evidence to support its claim. This leads to the next point.

Petitioners never denied the fact that the subject vehicles did not validly go
through the BOC because these subject vehicles have already slipped into the
country without the proper payments of import duties.

However, let it not be misunderstood that herein Petitioners took a part

in the said process of slipping the subject vehicles in the country. Precisely,
the owners of these vehicles availed of the amnesty program provided under
Customs Memorandum Order No. 1 Series of 2003.

Thus, to cling on the Ombudsman’s finding of administrative liability

against herein Petitioners is wrong and misguided. The Comment dated March
28, 2016 stated that:

“In any event, the failure on the part of petitioners to validate

their defenses, despite their supposed control of the records, was not
the basis of the Ombudsman decision finding them guilty of grave
misconduct and serious dishonesty. To emphasize, the Ombudsman’s
finding of administrative liability is based on the existence of
substantial evidence on record that consistently show that the subject
luxury vehicles did not validly go through the BOC and yet
processed for registration with the LTO through the active
participation of Petitioner.” (See page 12 of Comment dated March
28, 2016)

Contrary to the Comment dated March 28, 2016, herein Petitioners never
made it appear that the subject vehicles had been validly imported into the
country. This circumstances of the subject vehicles are precisely the reason
why the subject vehicles availed of the amnesty program under Customs
Memorandum Order No. 1 Series of 2003 – the subject vehicles already slipped
into the country illegally without the participation of herein Petitioners, as such it
is now asking for amnesty.

In addition, the Comment dated March 28, 2016 kept on insisting that
FORMAL ENTRY NOS. 087-03 and 086-03 pertain to the subject vehicles in
order to appear that:

1) There were vehicles which illegally passed into

the country with herein Petitioners’ participation; and

2) These FORMAL ENTRY NOS. 087-03 and

086-03 pertain to the subject vehicles.

13
 This is simply incorrect, obviously, because, when in truth and in fact,
these subject vehicles are covered by INFORMAL ENTRY NOS. 087-03 and
086-03.

(iii) It is not proper that the Decisions of the

Office of the Ombudsman in Administrative
Cases should be immediately executory
regardless of the nature of the penalty

The wisdom behind allowing a person to file an appeal is not only to hold
whatever penalty is to be meted to him/her but for the very reason that his
property rights are vested by the constitution. As such, in the case of Office of the
Ombudsman v. Laja:[44]

[O]nly orders, directives or decisions of the Office of the Ombudsman

in administrative cases imposing the penalty of public censure,
reprimand, or suspension of not more than one month, or a fine not
equivalent to one month salary shall be final and unappealable hence,
immediately executory. In all other disciplinary cases where the
penalty imposed is other than public censure, reprimand, or
suspension of not more than one month, or a fine not equivalent to
one month salary, the law gives the respondent the right to appeal.
In these cases, the order, directive or decision becomes final and
executory only after the lapse of the period to appeal if no appeal is
perfected, or after the denial of the appeal from the said order,
directive or decision. It is only then that execution shall perforce issue
as a matter of right. The fact that the Ombudsman Act gives parties
the right to appeal from its decisions should generally carry with it
the stay of these decisions pending appeal. Otherwise, the essential
nature of these judgments as being appealable would be rendered
nugatory. (emphasis in the original).

This wisdom should not be in brushed away easily because the truth is, this
ruling is more aligned with the wisdom of the Constitution when is stated that No
person shall be deprived of life, liberty, or property without due process of law.

The argument that there is no damage on the part of herein Petitioners

being dismissed from the service while the instant case unconstitutional, if not, in
humane.

Section 1, Article III, of the Constitution states that no person shall be

deprived of property without due process of law, and protected property includes
the right to work and the right to earn a living.

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 A profession, trade or calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right to work and the
right to make a living because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an actionable wrong.
(Antonio M. Serrano, vs Gallant Maritime Services, Inc., G.R. No. 167614,
March 24, 2009)

To forcefully deprive herein Petitioners from earning a living by turning a

blind eye to the truth that each man has to earn a living, does not serve the real
purpose of the law.

PRAYER

WHEREFORE, Petitioners most respectfully prays that the Petition be

granted and that and Order be issued reversing the Decision of the Office of the
Ombudsman and dismissing the instant case against herein Petitioners.

All other reliefs, just and equitable are also prayed for.

RESPECTFULLY SUBMITTED

In the City of Davao, 12th day of October, 2016

TESIORNA, ESCURZON and GONZALES

and Associates Law Office
(Counsel for Petitioner)
Room 201, Villa Abrille Building,
Ramon Magsaysay Avenue, Davao City

By:
ARNEL C. GONZALES
(Counsel on record)
Roll No. 38252
IBP O.R. No. 098001/Issued January 06, 2015 in Davao City
P.T.R. No. 5314640B/Issued January 6, 2015 in Davao City

KENNETH P. RETUYA
(Collaborating/Assisting Counsel)
ROLL No. 64044, 04/27/15
IBP No. 1021396, January 9, 2016 Davao City
PTR No. 6788027, January 12, 2016, Davao City
MCLE Compliance No. V-0018932

Copy furnished:

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Department of Finance-Revenue
Intergrity Protection Service; and/or
Mssrs./Atty./s. Esteban Pancho B. Garong,
Crispin Velarde and Agapito Guarin
(DOF–RIPS)
Department of Finance
6th flr. DOF Building, BSP Complex
Roxas Blvd. Cor. Pablo Ocampo Street
Manila

Atty. Jose T. Capco, Jr.

(Counsel for Respondent Jaime Maglipon)
Capco & Campanilla Law Offices
Unit 1543 City and Land Mega Plaza
ADB Avenue corner Garnet Road
Ortigas Center, Pasig City

Atty. Ponciano R. Solosa

(Counsel for Mr. Alfredo Opao, Jr.)
L33 Leader Street
Pleasant Hill Subdivision
City of San Jose del Monte
Bulacan

Ms. Fe R. Lasay
(Office of the Internal Auditor)
Bureau of Customs
Port of Zamboanga
Zamboanga City

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