REPUBLIC.

OF THE PHILIPPINES
SAND~9:ANBAYAN
Quezon City
'.

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff,
SB-16-CRM -1089 to 1090
-versus- For: Violation of Section
3(e) of R.A. No. 3019

ANTONIO T. KHO, et al.

Accused.
Present:
DELA CRUZ, J., Chairperson
ECONG, J. and
FERNANDEZ, .i.:

PROMULGATED:

x ------------------------------------------------------------
--------
x
MAR Z 11017 r
RESOLUTION

ECONG, J.:

This resolves the following:

1. Motion to Quash Information and to Defer Arraignment

dated January 18, 2017, filed by accused Antonio T.
Kho;2

2. Consolidated Motion to Quash Informations dated

January 23,2017, filed by accused Victoria R. Ajero;"

3. Motion to Dismiss dated January 23, 2017 filed by

accused Roger H. Rapsing;"

1 Sitting as Special Member of the First Division per Administrative Order No. 009-2017 dated
January 11, 2017.
2 Records, p. 297.
31d. at 312.
4 Id. at 330.
Resolution
People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
Page 2 of16
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4. Comment/Opposition (To the Consolidated Motion to

Quash Information and to Defer Arraignment of Accused
Antonio T. Kho dated 18 January 2017; Motion Dismiss
of Accused Roger H. Rapsing dated 23 January 2017 and
Consolidated Motion to Quash Information of Accused
Victoria R. Ajero, dated 23 January 2017) dated February
13,2017, filed by the prosecution.>

5. Reply (to Plaintiffs Comment to Motion to Quash) dated

February 23,2017 of accused Antonio T. Kho.>

On November 21, 2016, two Informations were filed 'by

the Office of the Special Prosecutor against Antonio T. Kho
("Kho"),in his capacity as Governor of the Province of Masbate,
Roger H. Rapsing ("Rapsing") as Provincial Administrator and
Chairman of the Bids and Awards Committee (BAC), Alex
Rivera ("Rivera,,) and Victoria Rabelas Ajero ("Ajerd') as
President and Area Manager and Collector, respectively, of
Hexaphil Agriventures, Inc. ("Hexaphil"), of two (2) counts of
Violation of Section 3(e) of R.A. No. 3019. The two
Informations against all accused read:

(For SB-16-CRM-1089)
That on 15 April 2003 and sometime prior or
subsequent thereto, in Masbate City and within the
jurisdiction of this Honorable Court, accused ANTONIO T.
KHO, a high-ranking public officer, being then the Governor
of the Province of Masbate, and ROGER H. RAPSING,
Provincial Administrator and Bids and Awards Committee
(BAC)Chairman, while in the performance of their official
functions and committing the offense in relation to office,
taking advantage of their official positions, acting with
manifest partiality, evident bad faith, or gross inexcusable
negligence, and conspiring and confederating with one
another and with accused ALEX RIVERA and VICTORIA
RABELAS AJERO, private individuals, who acted as
President and Area Manager and Collector, respectively, of
Hexaphil Agriventures, Inc. (Hexaphil), did then and there,
willfully, unlawfully, and criminally, give unwarranted
benefits, advantage or preference to Hexaphil, by purchasing
and paying for 4,642.33 bottles of Hexaplus liquid fertilizer
(11-7-11) at Php700.08/bottle, in the total net amount of
Three Million Two Hundred Seventeen Thousand Five
hundred Pesos (Php3,217,500.00), without the benefit of
public bidding and also with the following attendant
irregularities: (a) by making specific reference to the brand
Hexaplus in the Purchase Request despite the availablity of

5 Id. at 371.
6 Id. at 401.
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People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
Page 3 of16
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several brands of liquid fertilizer with the same grade as

Hexaplus; (b) by resorting to direct contracting without valid
justification; and (c) by accepting the spurious eligibility
requirements submitted by Hexaphil, all in violation of
provisions of R.A. No. 9184 (The Government Procurement
Reform Act) and its implementing rules and regulations, to
the damage and prejudice of the government.

CONTRARY TO LAW.

(For SB-16-CRM -1090)

That on 23 December 2004 and sometime prior or

subsequent thereto, in Masbate City and within the
jurisdiction of this Honorable Court, accused ANTONIO T.
KHO, a high-ranking public officer, being then the Governor
of the Province of Masbate, and ROGER H. RAPSING,
Provincial Administrator and Bids and Awards Committee
(BAC) Chairman, while in the performance of their official
functions and committing the offense in relation to office,
taking advantage of their official positions, acting with
manifest partiality, evident bad faith, or gross inexcusable
negligence, and conspiring and confederating with one
another and with accused ALEX RIVERA and VICTORIA
RABELAS AJERO, private individuals, who acted as
President and Area Manager and Collector, respectively, of
Hexaphil Agriventures, Inc. (Hexaphil), did then and there,
willfully, unlawfully, and criminally, give unwarranted
benefits, advantage or preference to Hexaphil, by purchasing
and paying for 2,499 bottles of Hexaplus liquid fertilizer (11-
7-11) at Php700.08/bottle, in the total net amount of One
Million Seven Hundred and Thirty-Two Thousand Pesos and
92/100 Centavos (Php1,732,004.92), without the benefit of
public bidding and also with the following attendant
irregularities: (a) by making specific reference to the brand
Hexaplus in the Purchase Request despite the availablity of
several brands of liquid fertilizer with the same grade as
Hexaplus; (b) by resorting to direct contracting without valid
justification; and (c) by accepting the spurious eligibility
requirements submitted by Hexaphil, all in violation of
provisions of R.A. No. 9184 (The Government Procurement
Reform Act) and its implementing rules and regulations, to
the damage and prejudice of the government.

CONTRARY TO LAW.

On December 1, 2016, accused Kho posted bail for his

temporary liberty." On December 5, 2016, the Court ordered

7 Id. at 243.
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People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-1089 to 1090.
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for the issuance of a warrant of arrest against Rapsing, Rivera

and Ajero." Subsequently, on January 12,2017, accused Ajero
posted her bailbond before the Court." Rapsing likewise filed a
surety bond before the Regional Trial Court of Masbate.J?
However, this Court disapproved the said bond as the bonding
company used by Rapsing, Stronghold Insurance Company,
Incorporated, is not one of the bonding companies authorized
by the Office of the Court Administrator to transact with
Sandiganbayari.!' Rapsing was ordered to submit a new bond
acceptable to this Court. To date, no such bond has been
submitted.

As for accused Rivera, there is yet no return on the

warrant of the arrest.t? issued against him. He is yet to appear
before this Court, or to file any bailor bond for this case.

Kho and Ajero now move for the quashal of the two
Informations against them on the ground of violation of their
constitutional right to speedy disposition of their cases.

Accused Rapsing likewise prays for the dismissal of the

charges against him on the same ground. In addition, he
contends that the elements of Section 3(e) of R.A. No. 3019 are
unattendant in this case. He likewise avers that this case was
filed merely to harass him.

Motions to Quash by Kho and Ajero,

and the Motion to Dismiss by
Rapsing (Violation of the Right to
Speedy Disposition of Cases)

In three separate motions, accused Kho, Ajero and

Rapsing all allege that their respective constitutional right to
the speedy disposition of cases have been violated, given the
length of time that the prosecution took to file the present
cases against them.

Kho avers that the Ombudsman took almost four (4)

years to complete the preliminary investigation for this case,
counting from the filing of the Criminal Complaint dated June
17, 2011 by Task Force Abono, until the Resolution issued on

8 Id. at 237.
9 Id. at 349.
10 Id. at 244.
11 Id. at 271.
12 Id. at 276.
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People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
Page 5 of 16
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July 8, 2015 finding probable cause for the filing of

Information against the accused. Kho points out that from the
filing of the Complaint in 2011, it took the Ombudsman five (5)
years, before it was finally able to file the Informations against
him in Court on November 21,2016.13

Ajero, on the other hand, asserts that the delay is even

longer when reckoned from the Amended Complaint for
Plunder filed by the late Atty. Francisco Chavez in 2004,
against former President Gloria Macapagal-Arroyo and Jocelyn
Bolante. The complaint for Plunder gave birth to the creation
of Task Force Abono in 2006, which was tasked to conduct a
fact-finding investigation on what later became known as the
Fertilizer Fund seam. Ajero alleges that the entire process
took more than ten (10) years from the commencement of the
fact-finding investigation. 14

Accused claim that they suffered from anxiety from the

pendency of a criminal case against them, and that the long
delay made it more burdensome for them to prepare their
defense, on account of the loss of evidence and witnesses. IS

The three accused cite rulings of the Supreme Court in

the cases of Tatad v. Sandiganbayan, 16 People v.
Sandiganbayan, et al., 17 Coscolluela v. Sandiqanbauari.w and
Corpuz v. Sandiqanbauan'? in support of the quashal of the
Information/ dismissal of the case against them, on the above-
stated ground.w Accused Ajero further cites a case recently
decided by the Sandiganbayan, People v. Manuel Lapid, et al.,21
which has a timeline similar to the present case, and where
the Information was dismissed on the ground of inordinate
delay.P?

The prosecution opposes the motions of the accused,

arguing that the time it took for the complaint to be filed is not
unreasonable, vexatious, capricious or oppressive. On the
alleged delay by Task Force Abono in filing the complaint
before the Ombudsman, the prosecution explained that Task
Force Abono was not charged with the investigation of the

13 Id. at 298-300.
14 Id. at 312-315.
15 Id. at 298,315, and 334.
16 G.R. No. 72335-39, March 21, 1988, 159 SCRA 70.
17 G.R. No. 188165/189063, December 11, 2013.
18 G.R. Nos. 191411 & 191871, July 15, 2013, 701 SCRA 188.
19 G.R. No. 162214, November 11, 2004,442 SCRA 294.
20 Records, pp. 299-303, 315-319. and 333-334.
21 SB-15-CRM-0286, promulgated on September 30, 2016.
22 Records, p. 319.
Resolution
People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
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fertilizer purchase of the Province of Masbate alone, but of the

whole implementation of the P728 Million project in the entire
country. The sum of money involved and the scope of the
investigation justify the years it took to finish the fact-finding
investigation. 23

Further, the prosecution argues that the counting of the

period for the preliminary investigation should not be
reckoned from 2004, as accused did not suffer prejudice at
that time. The counting of the period should be reckoned only
from the filing of the complaint on November 28, 2011.
Considering that the last counter-affidavit was filed by
respondents on July 26, 2012, it only took more or less three
years to resolve the case, with the issuance of Resolution
dated February 8, 2015. And although it took 4 months before
the February 8, 2015 Resolution could be signed by the
Ombudsman, this period is reasonable, given the voluminous
work of the Ombudsman, the number of the accused, the
number of relevant documents, and the amount involved.>

Thus, from the filing of the complaint on November 28,

2011 until the filing of the two Informations on November 21,
2016, a period of less than 5 years passed. The prosecution
contends that this period is not unreasonable nor vexatious.
Moreover, such period of time can also be considered as time
afforded to the accused to controvert the evidence against
them, as in fact, of the fifteen original respondents, only four
were included in the Informations filed in Court.v-

From the averments of the parties above, the following

pertinent dates and incidents were culled in establishing the
timeline of this case:

DATE INCIDENT

April 15, 2004 Purchase of fertilizer from Hexaphil amounting to

Php3,217,500.00 (subject of SB-16-CRM-I089)

December 23,2004 Purchase of fertilizer from Hexaphil amounting to

Php 1,732,004.92 (subject of SB-16-CRM-I090)

Sometime in 2004 Complaint for Plunder filed before the Ombudsman by

Francisco Chavez against GMA and Jocelyn Bolante

23 Id. at 374.
21 Id. at 374-375.
25 Id. at 376.
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People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
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Sometime in 2006 Creation of Task Force Abono, which was tasked to

conduct a fact-finding investigation on the alleged P728
Million Fertilizer Fund seam

May 31,2011 Date of the Complaint by Corinne Joie Garillo as

nominal complainant of Task Force Abono

November 28,2011 Evaluation Sheet of the Office of Ombudsman was

docketed as C-C-11-0819-L based on Garillo's
Complaint dated May 31, 2011

February 8,2012 Order directing respondents to file their respective

Counter-Affidavits

July 26, 2012 Date when the last Counter-Affidavit of respondents

was received by the Office of the Ombudsman

February 16,2015 Date of the Resolution finding probable cause for the
filing of two Informations against the accused

July 8,2015 Approval by the Ombudsman of the Resolution finding

probable cause against the accused

September 3,2016 Filing of Kho's Motion for Reconsideration

September 18,2016 Filing of Kho's Supplemental Motion for Reconsideration

September 21, 2017 Letter from Atty. Roger H. Rapsing appealing for due
process and justice
I

October 13,2015 Resolution of the Ombudsman denying the Motion for

Reconsideration of accused Rapsing

November 21,2016 Filing of the two Informations before the Sandiganbayan

Motion to Dismiss by Rapsing

(Other Grounds)

In addition to the alleged violation of his constitutional

right to the speedy disposition of cases, Rapsing avers that the
elements of Section 3(e) of R.A. No. 3019 are not present in
this case.

Rapsing claims that he did not give unwarranted

benefits, advantage, or preference to Hexaphil by specifically
making reference to the brand Hexaplus in the purchase
Resolution
People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-1089 to 1090.
Page 80f16
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request. He was merely observing the prescribed requirements

as provided in the procurement law. Rapsing stated that when
the Department of Agriculture (DA) and the Province of
Masbate entered into a Memorandum of Agreement for the
implementation of the Farm Input/Farm Implement Program,
it was the DA which recommended the use of Hexaplus (11-7-
11) as liquid fertilizer. He explained that the BAC, instead of
holding a public bidding, chose direct contracting in
purchasing the fertilizer because first, Hexaplus (11-7-11) was
solely distributed by Hexaphil, and second, Hexaplus offered
the lowest price. Rapsing argues that direct contracting is
authorized under Section 50, paragraph c, of R.A. No. 9184,
there being no suitable substitute that can be obtained at a
more advantageous term to the government. Rapsing even
averred that Hexaphil's price is the same as that of the other
provinces in Region V who also availed of the government's
program for the purchase of fertilizers. Pursuant to this,
Rapsing issued a Certification that they opted the use of
Negotiated Purchase as an alternative mode of purchase.>

Rapsing also argued that there was no undue injury

sustained by the government or private party in the purchase
of fertilizers, as the choice of fertilizer they purchased was in
fact under the most advantageous term to the government.
Accused likewise maintain that he did not act with
manifest partiality, evident bad faith, or gross inexcusable
negligence. There was adequate justification for choosing it,
and for later resorting to direct contracting, as explained
above.

Rapsing also laments that he was discriminated against

by the Ombudsman, when he was singled out, among the
other members of the BAC, to be indicted, when in fact, the
BAC decides as a collegial body. He claims that the present
case was filed merely to harass him.
In reply to Rapsing's Motion to Dismiss, the prosecution
avers that Rapsing is included in the term "public officer"
being the Chairman of the BAC. Anent his allegations of lack
of undue injury, and that he has not given unwarranted
benefit, advantage or preference to Hexaphil, the prosecution
declares that these are matters better ventilated in a full-
blown trial. 27

26 Id. at 334-337.
27 Id. at 377.
Resolution
People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-1089 to 1090.
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The prosecution likewise denies Rapsing's claims of

harassment. Rapsing was the only one indicted from among
the BAC members because it was shown that only Rapsing
signed the Certification of the Bids and Awards Committee of
Masbate City authorizing the procurement of Hexaplus
through Negotiated Purchase.v"

RULING
Before proceeding to the substantial discussion of the
matters raised in the different incidents, the Court deems it
appropriate to first treat the propriety of the Motions to Quash
filed by accused Kho, Ajero and Rapsing.
The valid grounds of a Motion to Quash-? are as follows:
(a)That the facts charged do not constitute an offense;
(b)That the court trying the case has no jurisdiction over
the offense charged;
(c)That the court trying the case has no jurisdiction over
the person of the accused;
(d)That the officer who filed the information had no
authority to do so;
(e)That it does not conform substantially to the
prescribed form;
(f) That more than one offense is charged except when a
single punishment for various offenses is prescribed
by law;
(g)That the criminal action or liability has been
extinguished;
(h)That it contains averments which, if true, would
constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
his express consent.
At first glance, it would seem that the motion to quash is
not the appropriate remedy whenever the Accused would
invoke their constitutional right to the speedy disposition of
their cases considering that this is not one of the grounds

28 Id.
29 Sec. 3, Rule 117.
Resolution
People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-I089 to 1090.
Page 10 of 16
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cited in Sec. 3, Rule 117. It could then be argued that

accused should have filed instead a Motion to Dismiss.
However, in the case of Torres vs. Sandiqanbauan=, the
Supreme Court agreed with petitioner Torres that he can
invoke Sec. 3, par (d) of Rule 117 because whenever the right
of an accused to the speedy disposition of his cases is violated,
the Ombudsman loses its authority to file the Information in
Court. Stated differently, therefore, the inordinate delay can
constitute as a ground for the quashal of an Information if and
when the accused can show that the Ombudsman already lost
its authority to file the Information before this Court.
Besides, in Romualdez vs. Sandiganbayan (Fifth
Diuisiont." the High Court held that:
There is no substantial distinction between a "motion to
quash" and a "motion to dismiss." Both pray for an identical
relief, which is the dismissal of the case. Such motions are
employed to raise preliminary objections, so as to avoid the
necessity of proceeding to trial. A motion to quash is
generally used in criminal proceedings to annul a defective
indictment. A motion to dismiss, the nomenclature ordinarily
used in civil proceedings, is aimed at summarily defeating a
complaint. Thus, our Rules of Court use the term "motion to
quash" in criminal, 17 and "motion to dismiss" in civil,
proceedings.

It is therefore clear, that procedurally, the accused may

seek for the quashal of the Information whenever inordinate
delay in the filing of the cases in Court occurs, because the
prosecution has no more authority to file the same pursuant
to Sec. 3 (d), Rule 117.

In these cases, was there inordinate delay in the filing of

the Information in Court? If the answer is in the affirmative,
the case should be dismissed. On the other hand, if the
answer is in the negative, the case must proceed.
The right to the speedy disposition of cases is provided
for in Sec. 16, Article III of the 1987 Constitution. This
mandates that:

All persons shall have the right to a speedy

disposition of their cases before all judicial, quasi-
judicial or administrative bodies.
30 G.R. Nos. 221562-69, October 5,2016.
31 G.R. No. 152259, July 29, 2004, 479 Phi\' 265-308.
Resolution
People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-I089 to 1090.
Page 11 of16
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The constitutional right to a "speedy disposition of cases"

is not limited to the accused in criminal proceedings but
extends to all parties in all cases, including civil and
administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings. 32

Before proceeding to the analysis of whether the factual

circumstances point to the existence (or inexistence) of
inordinate delay, it is best to discuss first therole of the Office
of the Ombudsman in order to understand the harsh sanction
imposed on the inordinate delay, which the said Office can
cause.
Article XI, Section 12 of the 1987 Constitution declares
that since the Ombudsman and his/her Deputies are
"protectors of the people," they bear the solemn duty to "act
promptly on complaints filed in any form or manner against
public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations," as well as
"notify the complainants of the action taken and the result
thereof." . Certainly, the duty of the Ombudsman to act
promptly and expeditiously in the performance of its function
covers the disposition of cases it handles, not only in
preliminary investigations of criminal cases, but also in fact-
finding investigations, administrative investigations, as well as
preliminary inquiries under R.A. No. 1379, which is akin to
preliminary investigation in criminal cases.

In the landmark case of Coscolluela v. Sandiqanbauari=

the Supreme Court explained that "[a]« the institutional
vanguard against corruption and bureaucracy, the Office of the
Ombudsman should create a system of accountability in order to
ensure that cases before it are resolved with reasonable
dispatch and to equally expose those who are responsible for its
delays x x x."
Moreover, the Supreme Court, in Enriquez v. Office of the
Ombudsman.= through Justice Angelina Sandoval-Gutierrez,
held that the Ombudsman was:
x x x constitutionally created to be the "protector of the
people," with the expressed mandate that it "shall act
promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any

32 Ombudsman v.jurado, G.R. No. 154155, August 6,2008,583 Phi\' 132-157.

33 G.R. Nos. 191411 and 191871, July 15, 2013.
34 G.R. Nos. 174902-06, February 15, 2008, 569 Phi\' 309-323.
Resolution
People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-1089 to 1090.
Page 12 of16
x - --------- --- -----. -------- ---- --. ----- --- ---- ------ ----- --- -- x

subdivision, agency or instrumentality thereof, including

government-owned or controlled corporations, and enforce
their administrative, civil and criminal liability in every case
where the evidence warrants in order to promote efficient
service by the Government to the people."

xxx xxx

These powers, functions and duties are aimed to

enable respondent to be "a more active and effective agent of
the people in ensuring accountability in public office."
Unfortunately, respondent has transgressed its
constitutional and statutory duties. When the Constitution
enjoins respondent to "act promptly" on any complaint
against any public officer or employee, it has the
concomitant duty to speedily resolve the same. But
respondent did not act promptly or resolve speedily
petitioners' cases. The Rules of Procedure of the Office of the
Ombudsman requires that the hearing officer is given a
definite period of "not later than thirty (30) days" to resolve
the case after the formal investigation shall have been
concluded. Definitely, respondent did not observe this 30-
day rule.

Despite the exacting tenor of the constitutional provision

on the right to the speedy disposition of cases, the Supreme
Court in People us. Sandiganbayan (Fifth Diuision)35 set the
guidelines in the application of inordinate delay. It said:

The concept of speedy disposition is relative or flexible.

A mere mathematical reckoning of the time involved is not
sufficient. Particular regard must be taken of the facts and
circumstances peculiar to each case. Hence, the doctrinal
rule is that in the determination of whether that right has
been violated, the factors that may be considered and
balanced are as follows: (1) the length of delay; (2) the
reasons for the delay; (3) the assertion or failure to assert
such right by the accused; and (4) the prejudice caused by
the delay.

We now proceed to apply this 4-point test in these cases

to determine if there was inordinate delay before the Office of
the Ombdusman, as alleged by the accused.

Length of Delay.
Below is the summary of the important
case events before the Office of the Ombudsman, from
initiation until the filing of the criminal case before this Court:

35 G.R. Nos. 199151-56, July 25,2016.

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People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
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Period from Last

Date Case Event Case Event
(Years & Months)

Sometime in 2004 Complaint for Plunder filed

before the Ombudsman by
Francisco Chavez against GMA
and Jocelyn Bolante

Sometime in 2006 Creation of Task Force Abono, 2 years

which was tasked to conduct a
fact-finding investigation on
the alleged P728 Million
fertilizer fund seam

May 31,2011 Date of the Complaint by 5 years

Corinne J oie Garillo as
nominal complainant of Task
Force Aborio

November 28,2011 Evaluation Sheet of the Office 5 Months and 27 days

of Ombudsman was docketed
as C-C-11-0819- L based on
Garillo's Complaint dated May
31,2011

February 8,2012 Order directing respondents to 2 Months and 11 days

file their respective Counter-
Affidavits

July 26,2012 Date when the last Counter- 5 Months and 18 days
Affidavit of respondents was
received by the Office of the
Ombudsman

February 16, 2015 Date of the Resolution finding 2 Years 6 Months and
probable cause for the filing of 21 days
two Informations against the
accused

July 8,2015 Approval by the Ombudsman 4 Months and 20 days

of the Resolution finding
probable cause against the
accused

September 3,2016 Filing of Kho's Motion for 1 year 1month and 26

Reconsideration days

September 18, 2016 Filing of Kho's Supplemental 15 days

Motion for Reconsideration
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People v. Kho, et al.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
Page 14 of 16
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Resolution Denying Kho's

Motion for Reconsideration

Letter from Atty. Roger H.

Rapsing appealing for due
process and justice

October 13, 2015 Resolution of the Ombudsman

denying the Motion for
Reconsideration of accused
Rapsing

November 21,2016 Filing of the two Informations 1 Month and 8 days

before the Sandiganbayan

The fact-finding investigation on the Farm Input/Farm

Implement Project of the Department of Agriculture (DA)began
in 2004. At that time however, the investigation focused on the
project in its entirety or as a whole, considering that the
inquiry centered on former President Arroyo and former DA
Undersecretary Bolante. The complaint against accused was
lodged only on May 31, 2011. Prior to this date, accused in
these cases were not made subjects of the investigation as the
complaint of former Solicitor General Chavez was 'against
Arroyo and Bolante. In other words, there were yet no cases
against the accused in these cases that the Office of the
Ombudsman should dispose with dispatch. They could not be
considered as Respondents or Accused yet and thus, not
subjected to the hassles of defending themselves from the
charges. The number of years incurred by the Office of the
Ombudsman in conducting the fact-finding investigation could
not, therefore, be taken against the said Officefor purposes of
determining inordinate delay.
However, from the time that the complaints against
accused were filed on May 31, 2011, it took the Office of the
Ombudsman a total of five (5) years, five (5) months, and
twenty-one (21) days, to complete the entire preliminary
investigation stage before the same were filed in Court.
Following the ruling in People v. Sandiqanbouan.» such period
of time makes the delay inordinate and oppressive, and
therefore a violation of the right of the accused to the speedy
disposition of cases.

36 G.R, Nos. 188165 and 189063 dated December 11, 2013, 712 SCRA 359.
Resolution
People v. Kho, et at.
Criminal Case Nos. SB-16-CRM-1089 to 1090.
Page 15 of16
x ------- ---- ------- ----------- ---- -------- ---- ------- ---- ---- -- x

Reason for the delay. The prosecution (OSP) reasoned

that the reason for the delay is because of the voluminous
work of the Office of the Ombudsman, the number of the
accused, the number of relevant documents, and the amount
involved.

The Court finds these reasons put forward by the

prosecution implausible given the nature of the cases lodged
by the complainant as well as the complaint-affidavits,
affidavits of complainant's witnesses, its attached documents
as well as the counter-affidavits of the respondents and their
witnesses, and the other documents. The issues raised by the
parties are not complex. The number of respondents in these
two cases are also not that numerous to justify the length of
the investigation. Perhaps what prosecution means is that
there are numerous cases involving the Farm Input/Farm
Implement Program of the DA. It must, however, be pointed
out that those cases do not involve the accused in the present
case.

It could not be over-emphasized that the Office of the

Ombudsman, as the "protector of the people", was conceived
by the framers of the constitution to ensure the accountability
of all public officials. Because of its power, the law vested in
the said office necessary powers in order to perform its solemn
tasks. On the other hand, the only tool that any public official
sued has against the powerful Office of the Ombudsman is
his/her right to invoke his/her constitutional rights, including
the right to the speedy disposition of cases against him/her.
From the moment a complaint is lodged with the Office of the
Ombudsman, the clock starts ticking, and the Office is thus
burdened to dispose of the case with dispatch.

Assertion of such right by the accused. Accused could not

be considered to have waived their right to the speedy
disposition of their cases just because they did not raise or
invoke the same when the cases were still pending before the
Ombudsman for preliminary investigation. As a matter of fact,
he made this assertion at first opportunity to do so-i.e., he
filed the motion to quash / dismiss on the ground of inordinate
delay immediately after the Information against them were
filed.
Prejudice caused by the delay. That the accused are
prejudiced by the delay is obvious. This case is pending in
court for a considerable period and as claimed by them, they
suffered from anxiety from the pendency of a criminal case
Resolution
People v. Kho, et al.
Criminal Case Nos. S8-16-CRM-1089 to 1090.
Page 16 of16
x ---------- ----- ---- -- --- ------------ ---- ----- --------- --- ---- - x

against them, and that the long delay made it more

burdensome for them to prepare their defense, on account of
the loss of evidence and witnesses.F

Lastly, apart from the claim of inordinate delay, accused

Rapsing claims that the Informations against him should be
quashed because the facts charged do not constitute an
offense because of the lack of the element of giving
unwarranted benefits, advantage, or preference to Hexaphil by
specifically making reference to the brand Hexaplus in the
purchase request. The determination of whether this
allegation is true of not is not apparent at this stage as the
allegations raised by accused Rapsing is clearly evidentiary.
Thus, this ground for quashal does not hold any ground.

premises considered, the instant cases

WHEREFORE,
against accused ANTONIOT. KHO, ROGER H. RAPSING,and
VICTORIA R. AJERO, are hereby DISMISSED. The
cash / surety bonds posted for the provisional liberty of Kho,
Rapsing, and Ajero are hereby ordered released, subject to the
usual accounting and auditing procedures. The Hold
Departure Orders issued against them are hereby lifted and
set aside.
SO ORDERED.

Quezon City, Metro Manila, Philippines.

jtMal~ kittt ~
GERALDINE FAITH A. E'CONG
Associate Justice

WE CONCUR:

EFREN N1 ~ LA CRUZ o R. FERNANDEZ

Asso~il~JJ ustice sociate Justice
Chairperson

37 Records, pp. 298, 315, and 334.