Sombero, Jr. vs. Office of the Ombudsman and National Bureau of Investigation

The Ombudsman’s determination of probable cause during preliminary investigation, being executive in nature and requiring only substantial evidence, is entitled to respect and will not be disturbed via certiorari absent grave abuse of discretion, particularly where the evidence establishes the elements of plunder through a combination of overt acts involving public officers and private conspirators amassing ill-gotten wealth of at least P50 million.

On November 24, 2016, Bureau of Immigration operatives apprehended 1,316 undocumented Chinese nationals operating an illegal online casino at Fontana Leisure Park in Clark, Pampanga, a facility reportedly owned by Jack Lam and managed by Norman Ng. In the ensuing crisis, petitioner Wenceslao Sombero, Jr., identifying himself as President of the Asian Gaming Service Providers Association, allegedly intervened to secure the release of the detained nationals by arranging meetings with high-ranking government officials and facilitating the exchange of P50 million in cash with immigration officials.

• The Fontana Raid: On November 24, 2016, pursuant to BI Mission Order No. JHM-2016-065, the Fugitive Search Unit of the Bureau of Immigration conducted a law enforcement operation at Fontana Leisure Park and Casino in Clark Freeport Zone, apprehending 1,316 undocumented Chinese nationals engaged in illegal online gaming operations. The facility was reportedly owned by Jack Lam and managed by Ng Khoen Hon (Norman Ng).
• Sombero’s Intervention: Amidst the detention crisis, Sombero allegedly contacted Ng, introduced himself as President of the Asian Gaming Service Providers Association, Inc. (AGSPA), and arranged a meeting between Lam’s camp and Department of Justice Secretary Vitaliano Aguirre II and BI Deputy Commissioner Al Argosino.
• The Shangri-La Meeting: On November 26, 2016, at the VIP room of High Street Cafe in Shangri-La Hotel, Bonifacio Global City, Sombero introduced Lam, Ng, and Alex Yu to Secretary Aguirre and Deputy Commissioner Argosino. Sombero allegedly asked Secretary Aguirre to act as “ninong” (godfather) to Lam. Secretary Aguirre reportedly ignored the overture and left within minutes.
• The Bribery Agreement: Following Aguirre’s departure, Sombero and Argosino allegedly agreed on a P100 million settlement, with P50 million to be delivered immediately as a show of goodwill.
• The Cash Exchange: In the early hours of November 27, 2016, at the City of Dreams casino in Pasay City, Sombero delivered two paper bags containing P10 million each to Argosino and Robles at a restaurant. After initial conversation, Sombero left and returned at approximately 5:45 a.m. with three additional paper bags containing P10 million each. The group proceeded to the parking lot where three bags were loaded into Argosino’s vehicle and two into Robles’ vehicle. Sombero allegedly retained P2 million from the P50 million for forming a legal team.
• Subsequent Events: On November 30, 2016, the parties met at the Crown Hotel to discuss bail matters, where Argosino allegedly demanded the remaining P50 million despite no releases having been made. Sombero then approached BI Acting Intelligence Chief Charles Calima, Jr. and divulged the transaction. Calima confronted Argosino and Robles, and on December 8, 2016, presented evidence of the transaction to BI Commissioner Jaime Morente, prompting Argosino and Robles to admit possession of the P50 million. Calima and Argosino later agreed that Calima would receive P18 million as his share, which Argosino delivered on December 9, 2016. Calima was subsequently fired, while Argosino and Robles resigned.
• Sombero’s Defense: In his Counter-Affidavit submitted on April 10, 2017, Sombero claimed that he merely assisted the detained Chinese nationals in his capacity as AGSPA President and that it was Argosino who demanded P100 million, insisting that half be given at once as a show of goodwill. He asserted that the P2 million he received was for forming a legal team to assist in processing the release of the Chinese nationals.

• Lack of Probable Cause for Plunder: Sombero maintained that no probable cause existed to charge him with plunder because the element of a “combination or series of overt or criminal acts” was absent, the transaction having occurred on a single day. He argued that the P50 million exchange constituted a single isolated act rather than the required pattern of criminal acts described in Section 1(d) of R.A. No. 7080.
• Absence of Main Plunderer: Petitioner contended that the Ombudsman committed grave abuse of discretion by finding probable cause for plunder without identifying the “main plunderer” among the accused, arguing that this element is essential to establish the crime and that a private individual cannot commit plunder without a public officer being designated as the principal.
• Due Process Violation: Sombero argued that his right to due process was violated when the Ombudsman charged him with plunder under R.A. No. 7080 despite the initial complaints having been filed only for violation of Section 3(e) of R.A. No. 3019. He asserted that he was never given notice or opportunity to defend against the graver charge of plunder during the preliminary investigation.

• Sufficiency of Evidence: The Office of the Solicitor General, representing the Ombudsman, countered that the finding of probable cause was supported by substantial evidence showing that Argosino and Robles, acting as BI Deputy Commissioners, conspired with Sombero to amass ill-gotten wealth of P50 million through overt acts described in Section 1(d) of R.A. No. 7080, specifically by receiving pecuniary benefits by reason of their office and taking undue advantage of their official position.
• Prematurity of “Main Plunderer” Argument: Respondent argued that the identification of the main plunderer is required only in the Information to be filed before the trial court, not necessarily in the preliminary investigation resolution, rendering Sombero’s objection premature at this stage.
• Prosecutorial Discretion: The Ombudsman maintained that it possesses wide latitude under Article XI, Section 12 of the Constitution and R.A. No. 6670 to determine the proper offense to charge based on evidence developed during preliminary investigation, and that there is nothing irregular in filing an indictment for an offense different from the initiatory complaint if warranted by the evidence.

• Probable Cause for Plunder: Whether the Ombudsman committed grave abuse of discretion in finding probable cause to charge Sombero with plunder under R.A. No. 7080 based on a single-day transaction and without identifying the main plunderer.
• Due Process in Preliminary Investigation: Whether Sombero’s right to due process was violated when the Ombudsman charged him with plunder despite the initial complaints being for violation of R.A. No. 3019.

• Probable Cause for Plunder: The finding of probable cause was sustained. The elements of plunder were established by substantial evidence: (a) Argosino and Robles were public officers serving as BI Deputy Commissioners; (b) they amassed ill-gotten wealth through a combination of overt acts (receiving P50 million on two separate instances during the early hours of November 27, 2016) in connivance with Sombero; and (c) the aggregate amount involved was at least P50 million as evidenced by the affidavits of Ng and Yu and Robles’ admission in his Counter-Affidavit. The requirement of a “combination or series” of acts was satisfied by the two separate instances of receiving money on the same day.
• Main Plunderer Requirement: The objection regarding the lack of identification of the “main plunderer” was deemed premature. Citing Macapagal-Arroyo v. People, the Court ruled that while the main plunderer must be identified in the Information, such identification is not required in the Ombudsman’s preliminary investigation resolution or order.
• Due Process: No violation of due process occurred. Citing Enrile v. Salazar, the Court held that the Ombudsman has the discretion to file an indictment for an offense different from that charged in the initiatory complaint if warranted by evidence developed during preliminary investigation. The Ombudsman is not bound by the technical rules on evidence and may investigate and prosecute on its own initiative without need for a complaint-affidavit.

• Grave Abuse of Discretion as Basis for Certiorari — Certiorari is an extraordinary prerogative writ not demandable as a matter of right; it requires clear and convincing showing of grave abuse of discretion amounting to lack or excess of jurisdiction. The burden of demonstrating facts essential to establish the right to the writ lies with the petitioner.
• Ombudsman’s Investigatory and Prosecutory Powers — Under Article XI, Section 12 of the Constitution and R.A. No. 6670, the Ombudsman possesses wide latitude of investigatory and prosecutory prerogatives. Courts exercise restraint in interfering with the Ombudsman’s performance of its functions, deferring to its sound judgment except where grave abuse of discretion is shown.
• Probable Cause in Preliminary Investigation — The determination of probable cause during preliminary investigation is executive in nature, requiring only substantial evidence and not absolute certainty of guilt. The finding need only rest on evidence showing that more likely than not a crime has been committed and that there is enough reason to believe it was committed by the accused. The Ombudsman is not bound by technical rules on evidence.
• Elements of Plunder — The crime of plunder under R.A. No. 7080 requires: (1) the offender is a public officer who acts by himself or in connivance with others; (2) he amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1(d) of the law; and (3) the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos (P50,000,000.00).
• Identification of Main Plunderer — Because plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth in the total value of at least P50 million, the identification in the Information of such public official as the main plunderer among the several individuals thus charged is logically necessary under the law itself, but this identification is required only in the Information, not in the preliminary investigation resolution or order.
• Prosecutorial Discretion in Charging — There is nothing inherently irregular or contrary to law in filing against an accused an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation. The Ombudsman has ample room and wide-ranging margin of discretion in determining not only what constitutes sufficient evidence establishing probable cause, but also the proper offense to be charged depending on the evidence submitted.

• "Certiorari is an extraordinary prerogative writ that is not demandable as a matter of right. For the Court to even consider a petition for certiorari, it must clearly and convincingly show the presence of grave abuse of discretion."
• "During a preliminary investigation, the OMB merely determines whether probable cause exists to warrant the filing of a criminal case against an accused. Such investigation is not a part of the trial and is executive in nature."
• "The executive finding of probable cause requires only substantial evidence and not absolute certainty of guilt."
• "The finding of probable cause need only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused."
• "There is nothing inherently irregular or contrary to law in filing against an accused an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation."
• "Because Plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth in the total value of at least P50 Million, the identification in the Information of such public official as the main plunderer among the several individuals thus charged, is logically necessary under the law itself."

• Macapagal-Arroyo v. People, 808 Phil. 1042 (2017) — Cited for the rule that the main plunderer must be identified in the Information, not necessarily in the preliminary investigation resolution.
• Enrile v. Salazar, 264 Phil. 593 (1990) — Cited for the principle that filing an indictment for an offense different from the initiatory complaint is not inherently irregular if warranted by evidence developed during preliminary investigation.
• Dichaves v. Ombudsman, 802 Phil. 564 (2016) — Cited regarding the Ombudsman’s wide latitude in investigatory and prosecutory functions and the standard for grave abuse of discretion.
• Estrada v. Ombudsman, 751 Phil. 821 (2015) — Cited regarding the nature of preliminary investigation and the Ombudsman’s independence from technical rules of evidence.

• Article XI, Section 12, 1987 Constitution — Grants the Ombudsman the power to act promptly on complaints against public officials and employees.
• Article XI, Section 13(1), 1987 Constitution — Empowers the Ombudsman to investigate on its own, or on complaint by any person, any act or omission of public officials.
• Republic Act No. 6670 (The Ombudsman Act of 1989) — Provides for the functional and structural organization of the Office of the Ombudsman and its investigatory and prosecutory powers.
• Republic Act No. 7080 (Plunder Act), Section 1(d) — Defines ill-gotten wealth and enumerates the means by which it may be acquired, including receiving kickbacks or pecuniary benefits in connection with government contracts or by reason of office, and taking undue advantage of official position to unjustly enrich oneself.
• Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act), Section 3(e) — Penalizes causing undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence.
• Article 210, Revised Penal Code — Defines and penalizes direct bribery.
• Presidential Decree No. 46 — Makes it punishable for public officials to receive, and for private persons to give, gifts on any occasion.

Peralta, C.J. (Chairperson), Caguioa, Lazaro-Javier, and Lopez, JJ.