12 July 2012

In a Resolution dated 15 June 2012, the Panel of National Prosecution Service (NPS) Prosecutors investigating the two (2) consolidated criminal cases filed against FRANCIS BRYAN G. ANG and eleven others found probable cause to indict Ang of eighty-seven (87) counts of qualified theft through falsification of commercial documents.

It will be remembered that Ang, a former executive of Citibank, N.A. was reported to have left the country in August 2010 after his employer uncovered questionable transactions involving accounts he was handling as Relationship Manager at the banks Binondo branch. In such capacity, he handled and serviced "high-priority clients" of the bank, had access to sensitive and confidential information pertaining to their accounts, and thus enjoyed a high degree of trust and confidence from both bank and clients.

The case arose when, in July 2010, a review conducted by the bank of the transactions in its Binondo branch resulted in the discovery of fraudulent bank transactions and other irregularities apparently facilitated and committed by Ang. A more thorough investigation followed, including a meeting held on 20 August 2010 between officers of Citi-Security and Investigative Services (CSIS) and Ang during which the latter, after having been confronted by the former with the evidence against him, voluntarily admitted having tampered with the banks accounts, including those belonging to clients he was servicing.

According to four (4) affidavits executed by Ang at the time, he admitted, among others, that he tampered with the funds of bank clients in the following manner: (1) he simulated transactions, including fund transfers, cash withdrawals and applications for managers checks, by forging the signatures of clients in bank documents; (2) he appropriated the funds as his own and/ or transferred the same to his intended beneficiaries, which included the accounts of his other clients in order to meet the rate of return he promised to them; and (3) he avoided detection by either changing the clients addresses on record with the bank so that notices meant for them will be diverted to his associate, a member of his fathers staff, or by implementing the "hold mail" order system, which allowed him tointercept notices once they are sent to the Binondo branch.

He also admitted offering time deposit interest rates to these clients higher than the rates offered by the bank, without the latters consent or instruction from his superiors. Pursuant to such offers, he would create fictitious statements, certificates of confirmations and provide copies thereof directly to the clients, without the knowledge and consent of the bank.

This was supported by the affidavits of the witnesses for Citibank, consisting of some of its bank tellers, who said that Ang personally handed the transaction documents to them, and made representations to each of them that the signatures appearing thereon, above the print "accountholders/applicants signature", were those of the clients. They further stated that, other than the signatures, the rest of the hand"vritten entries in the transaction documents were those of Ang. Some of such "witnesses, including Reddies Santos and Decerry Alcantara-Catimbang, also claimed that Ang instructed them to personally hand over and deliver to him the duplicate copies of the transaction documents, along \\ith the managers checks and the cash withdrawn from the accounts.

One of the two consolidated cases (NPS Docket No. XVI-INV-10J-00280) involved eighty-two (82) such transactions in the total amount of P97,003,540.00 and US$832,000.00, while the other (NPS Docket No. XV-07-INV-10H-06237) involved the total amount of P1,600,000.00 and US$43,000,00.

In light of such discovery, Citibank, through its Vice President for Branch Services, Mr. RAULMARTIN J. USON, filed cases for syndicated estafa through falsification under Section 1 (first paragraph) of Presidential Decree (P.O.) No. 1689 and Article 31S(2)(a) of the Revised Penal Code in relation to Article 172(1) and 171of the same Code. Ang failed to submit a consularized counter-affidavit.

In the course of the investigation, the Prosecutors asked to be enlightened regarding banking procedures followed prior to the release of amounts to payees or account-holders. They found that all other bank tellers who executed their affidavits, including the complainant bank, but with the exception of witness Catimbang, omitted following certain control measures, namely: (1) signature verification by the bank tellers; and (2) approval of the bank officer or manager on duty, other than the bank teller, assuming that the signature appearing on the transaction document appears to be genuine.

In resolving the case, the Panel of Prosecutors found no evidence to support the charge of estafa, much less syndicated estafa under P.O. No. 1689. It found that two of the essential elements of the crime, namely: (1) that the accused made false pretenses or fraudulent misrepresentations as tohis power, influence, qualifications, property, credit, agency, business or imaginary transactions; and (2) that such false pretenses or fraudulentmisrepresentations constitute the very cause which induced the offended party to part with his money or property. In so holding, the Prosecutors stated that they were not convinced that the bank tellers reliance on the alleged false pretenses and/or fraudulent misrepresentations of Ang insofar as thegenuineness ofthe signature of the account holders are concerned, even assuming such pretenses and/or representations were indeed false and fraudulent, was the efficient cause of the supposed defraudation in these cases.

Key in the Prosecution Panels finding is their observation that tellers and other bank officers failed to follow certain control measures, stating that "no amount of false pretense or fraudulent misrepresentation, not even moral ascendancy, could have persuaded or induced any bank teller to even process a transaction, much more, release payment, covering an account solely on the alleged representations made by a relationship manager that the signatures on the account holders thereon are genuine .... Consistent vdth [this] findings ... is the glaring fact that the transactions were repeated for more than eighty (80+) times. The Panel is of the firm belief that in all these more than eighty transactions, the bank tellers could not have just relied solely on the alleged misrepresentations made by respondent Ang .... This holds true to the duty bank officer/manager who authorized or approved the more than eighty (80+) questioned transactions."

Ang was also charged with estafa based on the banks claim that he enticed clients to part with their monies and entrust their funds to him for deposit and/or investment by offering unauthorized high interest rates and non-existing investment products, which fraudulent representations allegedly resulted in the bank suffering substantial damage corresponding to interest payments made to the clients of at least P101,000.00 each. As to this, the Panel found no evidence of the alleged unauthorized interest payments made by the bank insofar as nonexisting investment products are concerned, nor proof that the representation of the accused was actually false. Hence, criminal intent to deceive cannot be inferred. What is not disputed is that Ang, as Relationship Manager for highpriority clients of the Bank, was clothed with certain powers and authorities in handling the accounts, servicing the clients and making investment sales. Considering such position, along with the power and influence that go with it, his representations to the clients could not be said to be actually false and, therefore, not constitutive of the element of deceit, as contemplated in Article 315(2)(a) of the RPC.

These notwithstanding, given the facts and - relevant circumstances obtaining in the consolidated cases, the Panel of Prosecutors found sufficient evidence to indict Francis Bryan Ang for qualified theft under Article 310 of the Revised Penal Code. As defined, theft is committed by any person who, with intent to gain but without violence against, or intimidation of, persons nor force upon things, shall take the personal property of another without the latters consent. If committed \",ith grave abuse of confidence, the crime of theft becomes qualified.

The Panel found most damaging Angs admission, based on his own affidavits and counter-affidavits, "of having simulated numerous transactions relating to the accounts handled by him by forging the signatures of his clients in the subject transaction documents" and of having avoided detection "by changing the clients addresses registered with the Bank or implementing the hold mail order to ensure that clients would not receive Bank notices and statements."

Having held the position of Relationship Manager of the subject accounts during all the times material to the commission of the offenses, the Panel found that Ang took advantage of such position of trust and confidence when he prepared or caused the preparation of the questioned applications for fund transfers/managers checks and cash withdrawal slips/receipts, without the knowledge, consent or authorization of the account holders and the bank.

The Panel, citing jurisprudence, also found that, since all the account holders have denied the signatures appearing on each of the subject transaction documents as their mvn, prima/acie cases for falsification have been established, which were not sufficiently overridden by Angs bare denials in one case, and his outright failure to deny the same in the other. Since the allegedly falsified documents consisting of cash withdrawal slips, applications for managers checks and applications for account fund transfers fall within the categ()ry of commercial documents used in general by merchants or businessmen to promote or facilitate trade, there exists probable cause to charge him with the complex crime of qualified theft:through falsification of commercial documents.

The Panel rejected arguments assailing the admissibility of respondents affidavits, citing a case where the Supreme Court held that the admissions made by an acting assistant cashier of Metrobank, which were given and reduced into writing when he was summoned to appear for questioning before the Banks Assistant Accountant, Department of Internal Affairs, are admissible in evidence mainly because the latter is not a police officer or law enforcer and the questioning did not partake the nature of a custodial investigation wherein the acting bank cashier has been taken into custody or otherwise deprived of his freedom of action in any significant way (People V. Salonga, G.R. No. 131131, 21 June 2001).

Since the value of the property stolen or subject of the charge of qualified theft is more than P222,000.00, the Panel, pursuant to DOJ Circular (D.C.) No. 29, s. 2005, amending D.C. No. 74, s. 2001, recommended no bail for the crime/s committed.

As to the liability of the other respondents in the consolidated cases, predicated on the ground of conspiracy, the Panel of Prosecutors found no valid justification to hold the other respondents, including Angs cousin and mother, whether personally or as responsible officers of implicated juridical entities, equally liable for the crimes Ang committed on the mere basis of conspiracy.

The Panel found that the complainant-bank failed to establish sufficient evidence that they participated and conspired with respondent in the commission of the offenses charged, follov\ing jurisprudence that holds that liability as a coprincipal by reason of conspiracy necessitates a showing, through clear and convincing evidence, that the accused performed overt acts in pursuance or furtherance of the complicity. The mere fact that they were named as beneficiaries/payees does hot, by itself, make them co-conspirators "absent any showing that said respondents have specifically performed overt acts, either by active participation or moral assistance, in pursuance or furtherance of their
supposed conspiracy."

Based on the evidence adduced, there is no showing that the other respondents had access to the accounts being handled by respondent Francis Bryan Ang, or that they participated in the execution of the subject transaction documents, as what has been attested by complainants witnesses is that the handwritten entries in the subject transaction documents were made by Ang alone. Hence, the charges against the eleven (11) other respondents were dismissed for insufficiency of evidence.

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