Republic of the Philippines NATIONAL POLICE COMMISSI NATIONAL HEADQUARTERS, PHILIPPINE N; OFFICE OF THE CHIEF, PNP Camp BGen Rafael Came, Quezon Philippine National Police, Admi Complainant, RIASS-NMP-ADM-22-022 versus = FOR: Grave Misconduct and Conduct Unbecoming ofa Police Ofcer PMA] FERDINAND MANA MENDOZA, PSS har Anthony Reyes ral Stilo PSSg Sannyric Salangsang Alicante, PCpl Kenneth Rheiner Ferrer Delfin, ses] we PCpl Richmond Pinas Francia, ie PCpl John Gervic Nieva Fajardo, pre Oo Poice Pat Hermogines Abrera Rosario, Jr., and ep Pat Leandro Mangale Veloso, 022 Respondent. R Senor 2 : eashns_fodal} MOTION FOR RECONSIDERATION (re: Decision dated August 18, 2022) RESPONDENTS PSSg Mhark Anthony Reyes Iral, PSSg Sannyric Salangsang Alicante, PCpl Kenneth Rheiner Ferrer Delfin, PCpl Richmond Pinas Francia, PCpl John Gervic Nieva Fajardo, Pat Hermogines Abrera Rosario, Jr., and Pat Leandro Mangale Veloso, through their undersigned Counsel, to this Honorable Office, respectfully move for reconsideration of the Decision rendered on August 18, 2022, copy of which was received on August 23 and 24 (for Pat Veloso), based on grounds hereunder discussed: 1. - Preliminaries: 1. In the assailed Decision, respondents are found guilty of Grave Misconduct and Conduct Unbecoming of a Police Officer and, thus, meted the penalty of dismissal from the service. 2. Said finding is anchored on the claim that “there is sufficient evidence to support the charge of Grave Misconduct” against respondents (under Sec.2(c), par.3(), Rule 21 of NMC 2016-002 in relation to Art. 293 "Robbery” of the RPC)! 3. Accordingly, such finding concludes that respondents’ acts also fall within the realm of Conduct Unbecoming of a Police Officer ~ respondents’ act of forcibly taking personal properties of the private complainants violated the norms of conduct of police service, which tarnished the very image and integrity of the organization? {Page 2 Deion Page 3 Dein Poee | Scanned with CamScanner4. In adjudicating such finding, the Decision premised the same on the following: a) Respondents were charged as follows ... ‘took and carried away the personal belongings, among others, of Xiao Han, Hong Zhu Yi, Qi Chenze, Yang Hal Long, Ma Yun Xin, Li Sheng Qian, Wong Yow Hing, and Javier Basilio Carolino with intent to gain and without their consent” (age ofthe Deion) b) Respondent PMAJ MENDOZA, team leader of the said team, claimed that they were conducting buy-bust operation. However, upon verification, their pre- ‘operational report, coordination, and other documents for such operation were rnot valid. Also, a criminal case for the crime of Robbery In-Band was filed ‘against respondents before the Regional Trial Court (rage 2, Decision); ©) Applying the law (Art. 293, RPC) in the case, the elements of the crime of robbery is present (Le, 1. There is taking; 2. Of another's personal property; 3. With animus tucrandi; and 4. With violence, intimidation, or force), that is, “the act of the respondents in forcibly entering the house of the private complainants, restraining them with violence and intimidation, and taking the firearms that belong to the private complainants with intent to gain constitute the crime of robbery (pez Detsen 4) Further, the presence of respondents in the house of the private complainants ‘was unjustified. Respondent PMAJ MENDOZA should have applied for search warrant when he was informed by his CI that the private complainants were ‘engaged in illegal activities or should have coordinated with CIDG Angeles and Regional Office that have territorial jurisdiction over the offense (pges203} €) Also, their acts of illegally seizing and taking the firearms of the private complainants without the proper conduct of inventory are clear manifestations that they took the said items with intent to gain (paye3 Deion) {) Furthermore, the documentary and other circumstantial pieces of evidence presented by the prosecution are substantial enough and worthy of belief to rove that respondents committed Grave Misconduct (page 3.becion; g) The allegation of the respondents that the private complainants executed an affidavit of desistance deserves scant consideration ~ it does not ipso facto result in the dismissal of the administrative case; if the culpability of the respondents can be proven by evidence other than the statement of the witness, the administrative case can still stand considering the act of the respondents constitutes the crime of robbery (page 3 ection. tl, - Immediate Refutation and Ina tory ofcass the Court heli hata mation for ‘reconsideration, a a general ral, must have been fist led before the tribunal board o officer against whom the wrt of certiorari s ‘sought This is intended to afford te latter an opportunity to ‘correct ony factual or fancied eroratibuted of v...? (indeed, The ofce and fnetion of motion for reconsideration is ‘o.acord the court opportunity o correct its own erort "Repub ofthe Pipes Arn C Dinara and Nalin TanedoDimaract, CR. No, 200407 Mash 2018 * Ae: Court of peas, OR No. 365,19 Selene! 173, Page 12 Scanned with CamScanner5. There was no robbery committed, and respondents are utterly innocent of the accusation against them. Evidences proffered by the respondents are numerous, clear and adequate to substantiate and disprove the charges hurled. On the other hand, prosecution/complainant’s evidences and arguments are unverified, mere generalities and presuppositions, and serve as mere allegation or suspicion, but were swiftly accepted as gospel truth anyway to pin down respondents in this administrative case. Accordingly, the assailed Decision reflects, as clear as day, the sweeping pronouncement of respondents’ guilt a propos the utter lack of factual evidence and valid legal arguments to sustain its contentions. A. Lackofevidence or proof of robbery. versus ‘Shotgun accusation, or general conclusion 6. As aforementioned, the assailed Decision finds and contends that: Respondents were charged as follows... took and carried away the personal belongings, among others, of Xiao Han, Hong Zhu Vi i Chenze, Yang Hat Long, Ma Yun Xin, Li Sheng Qian, Wong Yow Hing, and Javier Basilio Carolno with intent to gain ond without thelr consent” (page 1): Applying the law (Art. 293, RPC) inthe cose, the elements of the crime of robbery is present (Le, 1. There is toking; 2. Of another's personal property; 3. With animus lucrandi; and 4 With violence, intimidation, ‘or force), thats the ac ofthe respondents in forcibly entering te house of the private complainants, restraining them with violence and Intimidation, and taking the firearms that belong to the private ‘complainants with intent to gain constitute the crime of robbery (page 2) Furthermore, the documentary and other circumstantial pieces of ‘evidence presented bythe prosecution are substantial enough and worthy (of belief to prove that respondents committed Grave Misconduct (page 3); 7. There is nothing in the Decision which points or refer to any such documentary and circumstantial pieces of evidence allegedly presented by the prosecution which prove substantial enough and worthy of belief to evidence the misconduct ascribe to respondents. There is only such allegation or insinuation. 8. It is elementary that a Decision, in laying the basis for its rendition, must not only exhibit the reasons or arguments supporting its finding or conclusion. More importantly, the facts or evidences that support such reason or arguments must be clearly and unequivocably presented and elucidated. However, there was none that was even remotely mentioned in this Decision other than the bare allegation or statement of prosecution witness stated in the “Affidavit of Arrest”. 9. Should such adjudication be acceded to, the reasoning obtained thereby can never be valid and accepted, for it will always beg the question or issue resolved {in the conclusion ~ that is, evidences of respondents’ guilt for Robbery are substantial based on the Affidavit of Arrest of the prosecution witnesses, thus, the Affidavit of Arrest proves Robbery committed by the respondents as such Affidavit is evidence enough to substantiate the same. 10. This is all that the Decision insinuates, a generalized conclusion pronouncing the guilt of respondents sans the particular evidence to clearly and satisfyingly substantiate the accusation against them, 1.If so (lack of evidence), how can there even be an appreciation that such (prosecution) evidence are substantial enough and worthy of belief to prove that pone 13 Scanned with CamScannerrespondents committed Grave Misconduct? Make no mistake, the assailed Decision clearly made a sweeping generalization of respondents’ guilt premised on an apparent lack of evidence (other than the bare allegation in the Affidavit of Arrest) and utter disregard of controverting evidences proffered by respondents that exculpate them from such accusation. 12. Indeed, how can it even be said that the law (Art. 293, RPC) applies in the case when there is not even a single proof of the following elements: (1) “TAKING" of personal property; (2) “BELONGING TO ANOTHER"; and (3) “WITH INTENT TO GAIN"? a) What are these personal properties referred to in the Charge Sheet? b) Whose properties are these, or were they validated to be owned by any of the eight (8) persons stated in the Charge Sheet, or that will just be simply presumed or assumed therein? ©) What prosecution exhibits are these said personal properties? 4) Were these properties actually taken away? How so? What proves it to ‘be so? Is there any validation or confirmation at all of such personal properties taken away, stolen or robbed? €) If so, how was there intent to gain at all if taking of property is not even established or validated? Again, was that simply presumed or assumed from the Affidavit of Arrest of prosecution witnesses? 1) What firearm is being referred to as evidence therein? Is that firearm licensed so it can be legally and validly treated as personal property? £) Whose firearm is that? Was there any validation of its ownership? 13.0n this account, it is very important to stress that robbery is a crime that is necessarily premised on the complaint of an offended party. Does the Decision insinuate that the nominal complainant can actually replace the alleged offended party in this case pertinent to an offense that is personal and private in nature only to the offended party? 14. The foregoing queries and refutation are vital matters that need to be addressed more than simply pronouncing that respondents are guilty and must be dismissed from service. For the foregoing clearly spells not merely of an arbitrary Decision but more importantly of plain denial of due process where, simply, the facts and application of the law is not only rendered doubtful but fatally incongruent to evidence submitted (if not lack of evidence at all) 15. Thus, Article Ill, Section 1 of the 1987 Constitution provides that “No person shall be deprived of life, liberty and property without due process of law”. And lest it be forgotten, employment, like any personal or real property, is such a right to property in that it is the source of sustenance of a person's income and means of living for himself and his family. Thus, being such a property right, no less than the Constitution mandates that before a person be deprived to his right of employment or property, due process of law must first be afforded him. 16. his circumstance scenario is exactly that sort depicted in the case of Sps. Boyboy v. Atty. Yabut, to which the Supreme Court heavily warns - Lookingat the present instance with an absolutely objective eye, we are not disposed to accept as gospel truth complainants imputation of ‘criminal or administrative wrongdoing to respondent in view of the existence of a wide chasm between the accusations and proof. The accusations should be fittingly treated for what they are ~ mere accusations founded on speculation and conjecture, if not sheer Page 14 ‘Scanned with CamScannertemerity. .... Pethaps we may not realize it, but lawyers would be at the mercy of the shrewd, the sinister, and the disgruntled who could ‘very easly vent their rancor against members of the Bar through the mere expedient of hurling unsubstantiated ~ worse, even malicious and prevaricated- claims. (emphasis, ours) xEK ‘We must emphasize that a mere charge or allegation of ‘wrongdoing does not suffice. Accusation is not synonymous with guilt. ‘There must always be sufficient evidence to support the charge. "The standard of substantial evidence required in administrative proceedings is more than a mere scinilla (Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 [1940]) .. While rules of evidence prevailing in courts of law and equity shall not be controlling... this Essurance ofa desirable flexibility in administrative procedure does not {0 30 faras to justily orders without basis in evidence having rational probative force (Ang Tibay)- ‘Lamentably, the evidence against the respondent does not meet the ‘mandated standard. At best, complainants would indulge in presumptions which, unfortunately, cannot be a valid basis to slap respondent with administrative sanctions. ‘To be sure, it will take more than mere pleadings and unre affidavits to lend an aura of respectability and credibility to ‘complainants accusations. A finding of guilt should only come from the strength of complainants evidence, not from the weakness of respondents defense 17.At the onset, Receipt of Property Receipt prepared by PSSg Alicante and Pat. ‘Veloso were duly submitted (ANNEXES 8 to 12, of Respondents’ Answer). Was the prosecution able to show and prove any missing item or personal property being claimed by the eight (8) complainants, that were not listed in the Receipt of Property Receipt prepared (other than bare or general allegation)? 18. With the foregoing, numerous things come to mind. Either all complainant's statement are outright afforded prima facie proof or treated as gospel truth, (invincible and incapable of susceptibility for dispute and refutation, however ‘much such refutation may be); or, conversely, that all complained police officers are immediately presumed guilty unless they can prove their innocence thereof? [such that all respondents’ controverting evidences are easily sweeped or brushed aside; that any and all such defenses by respondents deserve scant consideration rnor careful evaluation oftheir plea and countervailing evidences]? 19.{f the foregoing are the norms in adjudication, it would certainly be a pity for accused public officers who rendered decades of their life in devoted and good- faith performance of their duty (that can be simply thwarted by scrupulous allegation against them coupled with hasty appreciation of the merits of the ‘opposing party’s claim, arguments and evidence). 20. For it bears to remind that, - ‘The Fundamental rule i that mere allegation is not evidence, and is not synonymous to proof. Charges based on mere suspicion and speculation likewise deserve no credence. Consequently, when ‘complainant relies on mere conjectures and suppositions, and fails to ‘substantiate his allegations, the administrative complaint must be dismissed for lack of merits * de Jes. Guerrero ICR. 179, Spee 4,209 eS Scanned with CamScanner21. Indeed, mere allegation is consistently held as neither proof nor evidence. Allegations are not evidence and without evidence, bare allegations do not prove facts Ei incumbit probation qui decit, non qui negat’ ~ he who alleges, not he who denies, must prove, since mere allegation is not evidence and not equivalent to proof.” 22. While technicalities may be dispensed with in administrative proceedings, this does not mean that the rules on proving allegations are entirely dispensed with. Bare allegations are not enough, these must be supported by substantial evidence at the very least (Balasbas v. Monayao, G.R. no. 190524, February 17, 2014), 23.1t must be stressed, if at all, that none of the alleged eight (8) complainants appeared and identified their alleged affidavit against the respondents. All the allegations contained therein were likewise uncorroborated by evidence. Thus, for the affiants’ failure to identify their sworn statements, and considering the seriousness of the compliant or charges filed, their affidavits must not be accepted at face value and should be treated as inadmissible evidence (Miro v. Mendoza, G.R. Nos. 172532 & 172544-45, November 20, 2013). B. Respondents’ Exculpatory Proofs: ‘Complied Pre-Operation Clearance, due coordination, Good Faith Performance of Official Regular Function, vis-ievis Affidavit of Desistance, Retraction or Recantation 24, And like any other exculpatory evidences proving the innocence of respondents, said Annexes (8 to 12, Inventory Receipts) were never bestowed an iota of consideration by the Honorable Office. It appears that against such controverting physical and documentary evidences of respondents, it was simply easier to give credence to mere Affidavit of Arrest or allegation of an offense committed. 25. Given this, how else would the following considerations be refuted if not for the offical, authentic, and duly signed/approved documentary clearances and coordination secured by the respondents immediately prior to the conduct of their operation?, viz - Respondent PMAJ MENDOZA, team leader ofthe sid team, claimed that they were conducting buy-bust operation. However, upon vercation, their pre-operational repr. coordination, and other documents or such ‘operation were not vai. Als, aeriminal case forthe erie of Robbery In-Band was filed against respondents before the Regional Trial Court (age 2, Decision); Further, the presence of respondents in the house of the private complainants was unjustified. Respondent PMA) MENDOZA should have ‘applied for search warrant when he was informed by his CI that the ‘private complainants were engaged in illegal activities or should have ‘nordinated with CIDG Angeles and Regional Office that have territorial Jurisdiction over the offense (pages 2 to 3); Also, their acts of illegally setzing and taking the firearms of the private ‘complainants without the proper conduct of inventory are clear ‘manifestations that they took the said items with intent to gain (page 3 Decision); «Amie Mayor. Lourdes Masongay Been, GR. No S138, 03 Jane 2004 "Rodrigue, Vteca MP 8; Lac de er, 9 Pil 376; lanes Reyes, AM No. RTLOS.1905 (23 Feb. 2005) age | Scanned with CamScanner26.As fully stated in respondents’ Answer (pages 2 to 3 thereof): xxx 10, Hence, after securing our dispatch record reflected in our Blotter Book, at around 1700H on sald date january 25), we proceeded to the target place for conduct of casing/surveillance and possible operation. To encapsulate and signify the precise details of what transpired, hereto adopted are respective vernacular statement of undersigned respondents, to wit: ‘BSSgMhark Anthony Reyes tral NA, ako si PSSG Mhark Anthony R Iral, nasa hustong gulang, ‘may-asawa at kasalulayang noka assigned sa CIDGARMD PHAB rmatapos makapanumpa ng naayon sa batas ay nagsasaad at nagsasabi Ps Na, noong tka 25 ng Enero, 2022, humigit kumulang tka 4 ng Ihapon ng ako ay makatarggap ng tawag mula sa aming bagong assign ima team leader na si PMAJ FERDINAND MENDOZA kung saan sinabi sa ‘akin nito na mayroon daw operation hinggil sa bilihan ng hindi lisensyadong bari sa Angeles City at kanyang sinabi na ipahanda ko ang ‘mga dokumento na aming gagamitin sa nasabing operasyon. Ako din ay ‘nagtanong kay PMAJ Mendoza kung alam na bani CO ang nasabing mga Jakad at dito ay tunugon si PMA] Mendoza a kanya na tong natawagan atnakausap. Inhabilin din ni PMA) Mendoza na sabihan na ang mgo too ‘0 opsina na maaring makasama para sa nesabinglakad. 'Na, pagkatapos naming mag usop ni PMA) Mendoza ay agad ‘akong tumawag kay PCpl Richmond Francia upang maghanda ng Bre: ‘akin din inanong Jung sino pa ang nasa opisina at doon ay sinabi sa akin ni PCp! Francia na si PCp! Fajardo kung kaya’ ito ay akin din kinausap kung saan aking Sinabi na kung magari ay tulungen niya si PCpl Francia so mga dokumento at handa na rn ang 2) pora sa pera.na_gagamitin sa buy bust operation (ANNEX 3) at ‘ako ay patungo na din sa opisna. ang sandal ay mull akong tumawag kay PCpl Francia na hineayin nya si PMA) Mendoza para sa pagpirma sa COORDINATION, ‘Na, sa aking pagdatng sa Camp Crame ay nagtungo ako sa ming sasalyan na HYUNDAI STAREX na may plakang KOD931 at doon ay aking itinanong kung mayroon na bang nakahandong PRE-OPS CLEARANCE at COORDINATION kung saan tumugon si Pat FRANCIA na ‘mayroon na at ung PRE-OPS daw ay inikot na ni Pat JOSHUA LUIS ‘ANDULAN na noon ay duty office. Akng tinanong si PCpl Francia kung ‘sino ang purirma dito at kanyang sinabi na dinala nya ito sa opisina at Pinirmahan mismo ito ng aming CO na si PLTCOL Maristelo Manolo, ‘Aking sumunod na itinanong ang Request ng Powder Dusting at ang ‘sagot naman ni Ppl Fajardo ay ok na at mismong ang aming CO ang ‘siyang pumirma nito at ito pa raw ay nagtanong kung saan daw ito ‘gagamitin at sinabi ni PCpl Fajardo na kay PMA] Mendoza po na lakad at Sinabl ni PLTCOL Manalo na “ah ok raitawag na sa kin kanina yan ni PMAJ Mendoza. Na dahil sa aking mga narinig mula sa aking mga hasama ay napagpasyakan na naming umalis sa Camp Crame at ‘magtungo sa Camp Olivas sa Lungsod ng San Fernando, Pampanga (as proved by Blotter Excerpt (ANNEX 5) para magpasa ng aming COORDINATION ‘alinsunod na rin sa naging instruction ng aming team leader na si PMA] ‘Mendoza. ‘Na, humigit kumulang 7:15 ng gabi tka 25 ng Enero ng ay mull kong tinawagan si PMAJ MENDOZA pang itanong kung anong plate ‘number pa ang ilalagay sa COORDINATION. Pagkatapos ay nagsend si ‘PMAJ MENDOZA ng ext na “ford raptor DEJ8235" kay PSSq ial kaya't ito ‘ay isinulat kamay ni PCpl FRANCIA, pagkatapos noon ay umakyat na kami ni PCpl Francia upang pasa ang nabanggit na COORDINATION. Pagpasa namin ng COORDINATION {ANNEX 6} (Police Regional Office 13) ni PCpl Francia ay pinaalalahanan pa kami ng duty ri PSSg Jayson De ios na magpasa din kami ng COORDINATION (ANNEX 7} (Angeles City Police, Station 4) sa local police station na nakakasakop so aming area of operation. ee 17 Scanned with CamScanner27. Respondents duly submitted the following to bolster and cease the confusion, once and for all, that the CIDG operation conducted was not legitimate, to wit: a) Pre-Operations Clearance dtd 25 Jan 2022 b) Request for Ultra-Violet Dusting dtd 25 Jan 2022 ©) 2 pcs. 1000 bills (SN: ZE501683 and K739237) d) same; with another 1000 bill-boodle money (SN: EP634180) e) excerpt CIDG-AOCU Log Book/Blotter (w/ notation) {) excerpt CIDG-AOCU Log Book/Blotter 8) Police Blotter Excerpt dtd 31 Jan 2022 (CIDG-AOCU) h) Coordination (R3, PRO3), received 25 Jan 2022 i) Coordination (PS4, ACPO), received 26 Jan 2022 j)_ Receipt of Property Seized (by: PSSg Alicante, Sanny Ric) k) Receipt of Property Seized (by: Pat. Veloso) 1) confiscated monies (1000 bills) 28. These documents were all validated and/or duly signed. And yet, despite, (and in the face of), all this, itis still being claimed or contended in the assailed Decision that said documents are not valid, that there was no proper conduct of inventory of properties seized, and that there was no coordination made? Have they been denied, even, for once by the concerned signatory thereof? Ifnot so, then why the sweeping brushing aside of said respondents’ evidences? 29. And even if it may be said that coordination was not made to Angeles CIDG, that suffices to hold respondents guilty of Grave Misconduct, when PNPM-DO-D-0-2- 13-21 (Revised PNP Operational Procedures dated September 2021) provides?: Chapter2 Operational Guidelines Section 2-2 Coordination 21 Inter-Office Coordination. The operations officer or Team Leader/s (TL) of Local Police Units (LPUs) operating outside their territorial jurisdiction and National Support Units (NSUs) shall, whenever practicable, coordinate personally at any levels of police offices (Police Regional Office (PRO) to Municipal Police Station (MPS) or other friendly units within whose jurisdiction the operation is to be conducted. 23 Coordination by Practical/Avallable Means of ‘Communication. In cases where formal inter-unit coordination is not feasible, the police unit concerned shall endeavor to notify the Local Police Unit (LPU) through any practical/avallable means of communication including but not limited to electronic or signal communication at any time before the operation and shall accomplish and furnish the LPU a written incident report immediately after the termination ofthe operation 30. As stated, respondents were told and informed to participate and serve merely as back-up police officers in the casing, surveillance and possible operation of a buy-bust Illegal Possession of Firearms. They are innocent, nay otherwise have malicious intent, to perpetuate what is being accused of them. 31 After the necessary pre-briefing, and the approval by their Chief of Office, Chief, Intelligence Division and Chief of Coordinating Office Unit of their processed Pre- Operations Clearance, as well as due dispatch and record in their Blotter logbook, the said operation or activity is normally or regularly the same as the voae | Scanned with CamScannerprevious police operations they have rendered. Verily, respondents believed in the legitimacy of their police operation, securing the necessary requirements for e same, 32.In this regard, the presumption afforded by law should not have been easily thwarted away from respondents’ favor. Otherwise, such would serve a very dangerous precedent for subordinates who merely comply and follow the orders given them, specially that evidence against respondents do not equate squarely as clear, strong and convincing vis-a-vis the facts, circumstances and documents obtaining and submitted in their favor. 33. Indeed, as mere PNCOs, respondents do not question orders or tasking imposed upon them. They are constrained to comply and abide religiously to said Orders. ‘That is what they do, and that is what they did. 34.In this regard, good faith and presumption of regularity should have been duly accorded. As the Supreme Court provides: As law enforcers, their narration of incident is worthy of belief as such, they are presumed to have performed their duties in a regular manner’ ‘This presumption of Regularity may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy. Absent such, ‘presumption must be upheld? For in the absence of evidence to the contrary courts will presume that Public Officers have not culpably neglected or violated their official duties, thus, the dictum omnia praesumuntur rte ese acta. After al, ‘public officers and employees are presumed to have performed their ‘duties in accordance with law? Indeed, itis an elementary rule that police officers are presumed by law to have performed their tasks in regular performance oftheir work. Such presumption remains until strong, clear and convincing evidence to the ‘contrary is shown? 35.And while it may be true that the private complainants’ affidavit of desistance does not ipso facto result in the dismissal of administrative case (ifthe culpability of the respondents can be proven by evidence other than the statement of the witness), the point, nonetheless (and on the contrary), is that the accusation {for robbery cannot even be prosecuted de officio as it is essentially endowed ‘as a personal or private offense that necessitates the offended party, lest, there exists no evidence at all, specially if the complainants retract or recant their testimony prior to identifying or testifying on them in trial. 36. Verily, what evidence else can prove the private offense of robbery other than the testimony of complainants which, in this case, is not only lacking (or mere allegation), worst, was even retracted/recanted immediately as soon ofthe police? Oma procs rie ev aca ~al hinge presumes to have been done relay; Ocal uy hs ben reply peo: da public fcr have propery Schad be dies ftir fund peromed in pod faith and inte exe of ud judgment ose Fs wi wich hy are caged (le 1, Se. 3 (Revised Rae on Even) people Jam, 0 No, INOS 13 March 196 pn ac Ider Slr C, ns C4, OR No, L523, ebro 10206 "Sones on Eden Seton 139. " Obadimand Angles, C1 No. 1224, Sepembe 2, 2004 © Gate People, 385 SCRATS Scanned with CamScanner37.1t must be emphasized that the rule against desistance and retraction is not absolute, they apply only if there are other evidences available proving the offense committed or if the witness has already testified based on his/her complaint, which, in this case, obviously does not obtain (hence, the exceptional hon-application of the rule against desistance/retraction) for the plain reason aforestated that as soon as said alleged eight (8) complainants were released from the custody of the police, they immediately executed their respective desistance and retraction of their statements extracted and taken from them in the police station, And even stated that, “the statements in our Complaint Affidavit are inaccurate, if not untrue, and do not reflect the real account of events that transpired since our then rational and intellectual apprehension of facts and circumstances were overridden or clouded by our apparent confusion, obvious language barrier and emotional instability (or fear) in the face of everything that is happening’, with due assistance of their legal counsel and rightful translation of Wong Yow Hing. Hence, what evidence else can allegedly prove alleged taking of complainant's personal property other than complainants themselves who expressly and unmistakably declares that such is not so? 38, Whether before the Regional Trial Court of Angeles City, or in the hearing of this case at the Police Regional Office 3 of IAS, in Camp Olivas, Pampanga (ANNEXES 13 and 14), said alleged complainants remained firm, vocal, and persistent in stressing and declaring that: “after meticulous reflection and careful evaluation ofthe facts and circumstances surrounding the filing of the case, they realized that at the time they executed their Salaysay they were confused and tunable to grasp the events transpiring; Except for Wong Yow Hing, ‘who ls conversant in the English language and is translating and Interpreting what is being said or relayed to them, they could not comprehend the ongoing conversation and, much less, what was ‘written in their respective Sworn Complainant Affidavit that they are retracting what was stated in thelr Sworn Complaint Affidavit {for being products of confusion and emotional instability atthe time they were being obtained from them (especially paragraph ‘numbers 4 6 for Chinese Nationals, and paragraph numbers 20 6 for Caroling); Said statements in their Complaint Affidavit are inaccurate, if not untrue, and do not reflect the real account of events that transpired since their then rational and Intellectual ‘apprehension of facts and circumstances were overridden or clouded by thelr apparent confusion, obvious language barrier and ‘emotional instability (or fear) In the face of everything that is happening.” “Indeed, immediately after, withthe due assistance oftheir counsel ‘and rightful translation of Wong Yow Hing (with previous tension ‘and pressure no longer existing), they have carefully deliberated the pertinent facts and circumstances, and come to the ultimate realization that the accusations hurled by them against us police “officers defintely arouse out of sheer misunderstanding and clear misapprehension of facts, for which purpose they are executing their Afidavit, lly cognizant and knowledgeable ofits contents as well as due legal consequence (such as dismissal of the said criminal case and waiver in its revival or reiting of the same), fully read and explained to them by counsel and Wong Yow Hing conversing and translating English to their Chinese language: and, in the same vein, they also knowingly and voluntarily declare irrevocably, and with finality and prejudice, that they are no longer interested In the prosecution ofthe criminal case against us police ‘officers. And in doing so, they likewise categorically declare that they were neither forced nor coerced by anyone in executing thelr Affidavit, as they did itof their own volition and knowledge.” ae 10 Scanned with CamScanner39. Thus, respondents categorically declare their innocence and stand firm in their solemn conviction and belief that what transpired is a legitimate police operation as well as lawful performance of their police duty, and, are certainly entirely devoid of knowledge, intent and participation as to the accusation against them. Inappropriateness of Findings of Infraction. and lackof Appreciation of Mitigating Circumstances vis-d-vis punishment imposed * Good Faith 40.To reiterate, in all perfect good faith, respondents have aptly and duly regarded laws and rules. They harbor no ill-motive nor malicious, wanton or deliberate disregard for law or rules obtaining thereunder, They have neither engaged in dishonest, ilicit, prohibited, vile or evil criminal acts, nor are they repeated or habitual offender. Thus, ~ absence of selfish or evil motives on the part ofthe government employee ‘may be considered in determining the nature and gravity of his offense ‘and in imposing appropriate penalty therefor, ..!# 41. For as held, where respondent is found to have acted in good faith, he may be declared liable only for simple misconduct's or simple negligence."¢ ‘+ NoPrevious (First Time) Offense: ‘+ Meritorious Service (Awards and Commendations): ‘¢ Length of Service and Satisfactory Performance: 42. Prior to this case, respondents have never been cited for any administrative infractions. They are neither cited for either suspension or conviction from any criminal or administrative case, (prior to the foregoing administrative charges). 43.0n the other hand, for the numerous successful police operations rendered, respondents been repeatedly cited for meritorious commendations and awards since their assignment with their police unit, as proven by their respective Personal Data Sheet (PDS / PAIS) (Annexes 15 to 20, Answer). 44, For a decade since respondents served the PNP in utmost fidelity and devotion, with integrity and dedication both to the public and institution, they have satisfactorily fulfilled their duties and obligations in all their stay in the police service. Respondents are decorated public servant, having received various award/commendations for their exemplary service (capture and arrest of notorious/most wanted criminals), duly depicted in their PDS/PAIS. 45, None of foregoing circumstances have been appreciated (worst, even discussed as to how and why they are not appreciated despite timely invocation) in the assailed Decision. Hence, respondents reiterates invocation of the same. ° Faldonea% CSC, GR. 49874, 06 Aap 2002; Cama Ch Seice Board of pet, No. 11385, 31 May 1961 © Faldonee CSC. GR. No. 1434408 Avgist 2002 "Cama Cl Serie Board Appeal No. 11688, 31 May 1961 Poe at Scanned with CamScannerPRAYER WHEREFORE, premises considered, itis respectfully prayed that this instant Motion for Reconsideration be granted, reversing and setting aside the Decision dated August 18, 2022 thereby reinstating respondent non-commissioned Police Officers in service. Las Pinas for Quezon City, Metro Manila. 24 August 2022. Sr ALLAN AGNOL PASAMONTE Counsel for the Respondents Block6 Lot3 Veraville Drive Veraville Manuela Townhomes 3 Pamplona 3, Las Pinas City 1740 E-mail: aapstonelaw76@gmallcom Cell. Nos.: (0995) 302-4347/(0942) 200-0468 IBP Life Member No. 010123; 07/04/11; Pang. ‘MCLE Exemption No. VII-Acad003097; 10/20/21 PTR No. 12269775 J; 01/10/22; Las Pinas City Roll of Attorneys No. 48710/03 May 2004 VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING We, PSSg Mhark Anthony Reyes Iral, PSSg Sannyric Salangsang Alicante, PCpl Kenneth Rheiner Ferrer Delfin, PCpl Richmond Pinas Francia, PCpl John Gervic Nieva Fajardo, Pat Hermogines Abrera Rosario, Jr, and Pat Leandro Mangale Veloso, Filipino, of legal age, with postal address c/o our Counsel Atty. Allan Agnol Pasamonte, under oath, state that: 1. We are the respondent-movants in the above-entitled administrative case and caused the preparation and filing of the Motion for Reconsideration, 2. We have read the Motion, the allegations of which are true and correct based ‘on our own personal knowledge and authentic records. PSSg San ngsang Alicante PXPIDN: writ 9/86/25 pein Pcpl ion Phas Francia peta aR Pron BABIN wos eae Pcp Job Fajardo Pat gale Vejo prong arian is Pat es Rosario, Jr parovopaetaasty/ wn gk a oe SUBSCRIBED AND SWORN, before me, this =P 04, a2. Affiants having exhibited their issued PNP IDs (copy attached) as alee a Docs No, ATTY. ROGELIO J, BOLIVAR Page No._—)_; NOTARY Pusu Pa tt sae Book No. 8 ; AM Adin Maer Wo, 28 Jue 21,2021 to Dee 31, Series of 2022. UEPOR No. 132134MD 2024 & BP OR, No. 33075 MO 2022 PIROR No Oe8H20 1424 Rol No UH2 TNs 125871.08 CAEN USE ae 259 vga M2 ary Aaess “SF ravea St Zapi0 22 pent tt Scanned with CamScanner