Zaldy Nuez vs. Elvira Cruz-Apao

A.M. No. CA-05-18-P     April 12, 2005

Per Curiam     En Banc

Facts:

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." Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMA Network, the crew of which had accompanied him to the Presidential Anti-Organized Crime Commission–Special Projects Group (PAOCC-SPG) in Malacañang where he filed a complaint for extortion against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila, the place where the supposed hand-over of the money was going to take place.

Complainant’s case referred to above had been pending with the CA for more than two years. Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latter’s employment with the CA from her sister, Magdalena David. During their first telephone conversation and thereafter through a series of messages they exchanged via SMS, complainant informed respondent of the particulars of his pending case.

At the meeting place, 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.

Thereafter, an administrative case was filed against the respondent.

Issue:

            Whether or not the exchange of text messages between respondent and complainant may be used as evidence in an administrative case.

Ruling:

Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the former’s pending case with the CA.  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.68 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.

By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the people’s confidence in it.

In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in their Report recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including government-owned and controlled corporations.  Her retirement and all benefits except accrued leave credits are hereby FORFEITED.