Victim-accused

Very much in the news now is the loss of confiscated dangerous drugs worth millions of pesos. News reports say that several police officials were involved in the loss. Under the law, any public officer who is accountable for public funds or property by reason of the duties of his office is guilty of malversation if he appropriates said funds or property or takes or appropriates or consents or permits thru abandonment, or negligence, any other person to take such fund or property wholly or partially. How about if the public officer loses the said fund or property thru armed robbery? Is he guilty? This is the question raised in the case of Hermie.

Hermie started his career in the Philippine National Police as an auto mechanic. In a span of 43 years, he rose from the ranks to become police superintendent (or Lt. Colonel) holding the position of evidence custodian of the Criminal Investigation Service Command of the National Capital Region. Among the properties under his custody and safekeeping as evidence in a criminal case were 40 self-sealed transparent plastic bags of shabu weighing 5.5 kilograms and with estimated street value of P5 million. On two occasions, he brought the said shabu to the Regional Trial Court to be submitted as evidence in the criminal case. In bringing said shabu to the Court he was always accompanied by three police officers knowing fully well the value of the shabu. But on those two occasions the hearing was postponed so he had to take the shabu back to his office. While he had offered to turn over the evidence to the custody of the court, the latter refused because it had no vault to safekeep the same.

When Hermie was subpoenaed for the third time to bring the shabu to court, he again tried to look for police escorts. But the police escorts were unavailable this time. Nevertheless, he proceeded to the courthouse alone traveling the usual path he had taken in his previous trips. He traveled incognito in a Volks beetle armed with a .22 caliber revolver. But around 50 meters away from the courthouse, he was waylaid by holduppers, one of whom was armed with a .45 caliber pistol. The holduppers took the bag containing the shabu placed at the vehicle’s front passenger floor and immediately left the scene.

Hermie reported the incident to the court and testified about the robbery. He also reported the robbery to the police department and gave a statement on what transpired.

Nevertheless, he was charged with the crime of malversation of public property worth P5 million. After trial during which these facts and circumstances surrounding the loss were stipulated, the Sandiganbayan convicted Hermie and sentenced him to 10 years and one day to 17 years and 4 months imprisonment and to pay a fine of P5 million.

Hermie questioned this decision. He contended that his explanation as to the circumstances surrounding the loss of the shabu to armed men was sufficient enough to exonerate him from liability especially because there was no proof at all that he misappropriated the said public property for his personal aggrandizement.

Was Hermie correct?

No. Malversation is committed either intentionally or by negligence. There is gross negligence when a breach of duty is flagrant and palpable. In this case, the loss of the shabu was due to Hermie’s gross negligence. What makes Hermie’s gross negligence more pronounced is the fact that he was fully aware of the need to transport the shabu with police escorts, but despite the knowledge of the risk involved, he took it upon himself to deliver the said shabu without police escort. The sheer nature, value and amount of the contraband should have alerted him, an experienced custodian, to the risk that organized criminals might attempt to forcibly take away the shabu. His diligence fell short of that required by the circumstances.

The loss of the shabu to armed men cannot exonerate him. Such a possibility was evidently a foreseeable event because of the very nature of the object and its street value. His previous actions to safeguard the transportation of the shabu when he was accompanied by police escorts and his suggestions to deposit the evidence in Court as well as his effort to look for police escort the third time he was subpoenaed, underscore the fact that he was fully aware of the inherent danger in transporting the shabu, a fact that defeats his claim that the loss of the shabu was due to fortuitous event. A fortuitous event is defined as an occurrence which could not be foreseen or, which though foreseen, is inevitable.

Concededly, the presence of the police escorts would not have necessarily deterred the robbers from taking the shabu, but in such a case, Hermie should have shown due diligence that would controvert his own liability. While he is not expected to match the robbers, gun for gun, what is expected of him is to exhibit a standard of diligence commensurate to circumstances of time, person and place. His conviction and sentence was therefore upheld (Diego vs. Sandiganbayan, G.R. No. 1370282, September 4, 2000).

Poor Hermie. In his desire to comply with the subpoena, he even risked his life. And for doing so, he will still be incarcerated. I hope the same kind of justice will be meted out to the plunderers of our public funds and properties.

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E-mail at: [email protected] or jose@sison ph.com