ZALDY NUEZ vs. ELVIRA CRUZ-APAO
[A.M. No. CA-05-18-P. April 12, 2005]
FACTS:
This is an administrative case for
Dishonesty and Grave Misconduct against
Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division
Clerk of Court of the Fifteenth (15th) Division, Court of Appeals
(CA). The complaint arose out of respondent’s solicitation of One Million Pesos
(P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy
and favorable decision of the latter’s pending case in the CA, more
particularly, CA-G.R. SP No. 73460 entitled “PAGCOR
vs. Zaldy Nuez.”
Allegedly, complainant thought that
respondent would be able to advise him on how to achieve an early resolution of
his case.
However, a week after their first
telephone conversation, respondent allegedly told complainant that a favorable
and speedy decision of his case was attainable but the person who was to draft
the decision was in return asking for One Million Pesos (P1,000,000.00).
Complainant expostulated that he did
not have that kind of money since he had been jobless for a long time, to which
respondent replied, “Eh,
ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.” Complainant then tried to ask for a
reduction of the amount but respondent held firm asserting that the price
had been set, not by her but by the person who was going to make the decision.
Respondent even admonished complainant with the words “Wala tayo sa palengke iho!” when the latter bargained for a lower
amount.
Complainant then asked for time to
determine whether or not to pay the money in exchange for the decision.
Instead, in August of 2004, he sought the assistance of Imbestigador. The crew of the
TV program accompanied him to PAOCCF-SPG where he lodged a complaint against
respondent for extortion.
On 24 September 2004, complainant and
respondent met for the first time in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the
place where the entrapment operation was later conducted. Patricia
Siringan (Siringan), a researcher of Imbestigador,
accompanied complainant and posed as his sister-in-law. During the meeting, complainant
clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00),
he would get a favorable decision. This was confirmed by the latter together
with the assurance that it would take about a month for the decision to come
out. Respondent also explained that the amount of One Million Pesos (P1,000,000.00)
guaranteed a favorable decision only in the CA but did not extend to the
Supreme Court should the case be appealed later. When respondent was asked
where the money will go, she claimed that it will go to a male researcher whose
name she refused to divulge. The researcher was allegedly a lawyer in the CA
Fifth (5th) Division where complainant case was pending. She also
claimed that she will not get any part of the money unless the researcher
decides to give her some.
Complainant, respondent and Siringan
negotiated for almost one hour. Complainant and Siringan bargained for a lower
price but respondent refused to accede. When respondent finally touched
the unsealed envelope to look at the money inside, the PAOCTF agents converged
on her and invited her to the Western Police District (WPD) Headquarters at
United Nations Avenue for questioning. Respondent became hysterical as a
commotion ensued inside the restaurant. She called Atty. Lilia Mercedes
Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the
latter’s house. She tearfully
confessed to Atty. Gepty that “she asked for money for a case and was entrapped
by police officers and the media.” Enraged at the news, Atty. Gepty asked why
she had done such a thing to which respondent replied, “Wala lang ma’am, sinubukan ko lang
baka makalusot.” Respondent claimed that she was ashamed of what she did
and repented the same. She also asked for Atty. Gepty’s forgiveness and
help. The latter instead reminded respondent of the instances when she and her
co-employees at the CA were exhorted during office meetings never to commit
such offenses.[
Atty. Gepty rendered a verbal report of
her conversation with their division’s chairman, Justice Martin S.
Villarama. She reduced the report into writing and submitted the same to
then PJ Cancio Garcia on 29 September 2004.
ISSUE:
Whether
or not text messages admitted would violate right to privacy of the accused.
HELD:
No. The text messages were properly admitted by
the Committee since the same are now covered by Section 1(k), Rule 2 of the
Rules on Electronic Evidence which
provides:
“Ephemeral electronic
communication” refers to telephone conversations, text messages . . . and other
electronic forms of communication the evidence of which is not recorded or retained.”
Under Section 2, Rule 11 of the Rules
on Electronic Evidence, “Ephemeral electronic communications shall be proven by
the testimony of a person who was a party to the same or who has personal
knowledge thereof . . . .” In this case, complainant who was the recipient of
said messages and therefore had personal knowledge thereof testified on their
contents and import. Respondent herself admitted that the cellphone
number reflected in complainant’s cellphone from which the messages originated
was hers. Moreover, any doubt respondent may have had as to the admissibility
of the text messages had been laid to rest when she and her counsel signed and
attested to the veracity of the text messages between her and complainant. It is also well to remember that in
administrative cases, technical rules of procedure and evidence are not
strictly applied. We have no doubt as to the probative value of the text
messages as evidence in determining the guilt or lack thereof of respondent in
this case.
WHEREFORE,
premises considered, respondent Elvira Cruz-Apao is found GUILTY.
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