EN BANC

[A.M. No. P-04-1830. June 4, 2009.]

[Formerly A.M. No. 04-6-151-MCTC]

OFFICE OF THE COURT ADMINISTRATOR , petitioner, vs . SYLVIA

CANQUE, Clerk of Court, 12th MCTC, Moalboal-Badian-Alcantara-
Alegria, Cebu , respondent.

DECISION

PER CURIAM : p

The instant case stemmed from the Investigation Report of the National Bureau
of Investigation (NBI)-Region VII on the entrapment operation on Sylvia R. Canque, Clerk
of Court, 12th Municipal Circuit Trial Court (MCTC), Moalboal-Badian-Alcantara-Alegria,
Cebu.
The Investigation Report showed that on June 1, 2004, Marissa Y. Ypanto of
Barangay Polo, Alcantara, Cebu led a letter-complaint before the NBI alleging that
Canque asked from her the amount of Forty Thousand (P40,000.00) Pesos in exchange
for the release of the former's common-law husband, Jovencio Patoc, and the
dismissal of his criminal cases in court. Patoc was charged with violation of Republic
Act No. 9165 before the sala of Judge Victor R. Teves of the said court.
The NBI operatives conducted an entrapment operation on June 3, 2004 at about
9:30 A.M. in the sala of Judge Teves. They arrested Canque after she received the
amount of P40,000.00, previously marked with invisible ink and dusted with uorescent
powder, from Ypanto in the presence of NBI Investigator Jedidah S. Hife. Canque was
brought to the Forensic Chemistry Section of the NBI for laboratory examination.
Forensic Chemist Rommel D. Paglinawan, in his Physics Report, 1 found that the right
and left hands of Canque were positive for the presence of fluorescent powder. ISTECA

The NBI report further stated that prior to the entrapment, Patoc's mother had
already given the amount of Twenty Thousand (P20,000.00) Pesos to Canque in the
presence of Ypanto for the dismissal of Patoc's rst case for possession of "shabu" on
November 30, 2003. The case remains pending to date.
In a letter dated June 3, 2004, Atty. Reynaldo O. Esmeralda, Acting Regional
Director, NBI-Region VII, endorsed to the Deputy Ombudsman for the Visayas the case
of Canque for immediate inquest. Thereafter, Informations for direct bribery and
violation of Sec. 3 (b) of Republic Act No. 3019, as amended, were led in the Regional
Trial Court (RTC) of Barili, Cebu and were docketed as Criminal Case Nos. CEB-BRL-
1058 and CEB-BRL-1057, respectively.
In November 2003, Auditors from Region VII, Cebu City, conducted the periodic
audit on the cash and accounts of accountable o cers of the provinces of Cebu, Bohol
and Negros Oriental. After the audit of the cash and accounts of Canque, the Auditors
found that she had a cash shortage of P304,985.00. A letter of demand 2 was sent to
her to produce the missing funds and to submit a written explanation within seventy-
two (72) hours why the shortage occurred.
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 On August 3, 2004, the o ce of the Cluster Director, Commission on Audit,
Quezon City received the initial report on the result of the examination of the cash and
accounts of Canque. 3 Attached to said report were the chronological statements on
the events that transpired in the course of the audit submitted by Ma. Violeta Lucila T.
Luta, State Auditor II, Team Leader. On August 6, 2004, the Supervising Auditor
forwarded to the O ce of the Chief Justice the initial report on the results of the
investigation conducted on the cash and accounts of Canque. The initial report stated
that Canque had a shortage in her cash collection amounting to P304,985.00 and
recommended her immediate relief from her position and any other position involving
money or property accountability. 4 DCAEcS

In a Resolution dated June 29, 2004, the Court treated the NBI entrapment on
Canque as an administrative complaint for grave misconduct and directed her to
comment thereon. She was immediately placed under suspension until further orders
by the Court. The case was referred to a Consultant of the O ce of the Court
Administrator (OCA) for investigation, report and recommendation.
In her Comment, 5 Canque claimed that sometime in November 2003, Rebecca
Patoc came to her o ce to inquire about the bail for her son, Jovencio. When she
learned from the judge that the bail was P200,000.00, but that it could be reduced to
P100,000.00 if there was no objection from the Chief of Police, Rebecca came back
two (2) days later with a Motion for Reduction of Bail. After two weeks, Rebecca came
with Ypanto. Canque instructed them to proceed to a bonding company in Barili. She
alleged that at Shamrock Restaurant, Rebecca gave P20,000.00 as premium payment
for the bail bond to a certain Ote Erojo, who in turn delivered to Rebecca a copy of the
Release Order, promising to send her the bond undertaking by mail. On December 8,
2003, Jovencio and Ypanto brought the surety bond to Canque at the latter's office.
In May 2004, another case for drug pushing was led against Jovencio. Canque
admits to seeing Ypanto only on two (2) occasions: during the preliminary investigation
on May 24 and on May 31 when Ypanto asked her when the ten-day period for the ling
of Jovencio's Counter-Affidavit would expire.
Canque further averred that on June 3, 2004, the last day for the ling of the
Counter-A davit, Ypanto came with a woman who introduced herself as Jovencio's
sister who had just arrived from Holland. The woman got an envelope from her bag and
handed it to Ypanto. Ypanto tried to give it to Canque, but the latter did not touch it
when she saw that it was not the Counter-A davit. The woman allegedly got the
envelope from Ypanto and tried to place it at the back of the palm of Canque where it
lightly touched her skin. The woman then showed her ID and told Canque that she was
an NBI agent. Other NBI agents rushed in and arrested Canque.
In a Resolution dated November 9, 2004, the Court, upon the recommendation of
the OCA, reassigned the case to the Executive Judge, RTC, Cebu City for investigation,
report and recommendation, considering that all the persons concerned were residents
of Cebu City.
Executive Judge Simeon P. Dumdum, Jr. conducted a hearing on October 18, 2005,
attended by Canque, NBI agents Gregorio Algoso, Jr., Reynaldo Villordon and Jedidah Hife.
The notice sent to Ypanto was returned with the information that she had died.
The Investigation Report 6 states, viz.:
Jedidah S. Hife, a special investigator of the National Bureau of
Investigation Central Visayas Regional O ce, identi ed her A davit, dated June
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 3, 2004.

In that A davit, Hife declared that on June 3, 2004, at about 9 o'clock in

the morning of June 3, 2004, at the o ce of the Municipal Circuit Trial Court,
Moalboal-Badian-Alcantara-Alegria, Cebu, she and other NBI agents arrested
Sylvia Canque in an entrapment operation.

She had been instructed to accompany Marissa Ypanto, pretending to be

her friend, and to give a pre-arranged signal to other NBI agents at the proper time.

Thus, she and Marissa Ypanto had entered a room inside the courtroom,
and there Marissa introduced her to Sylvia Canque as her friend. Marissa had
brought with her marked money in the amount of P40,000.00, for which Sylvia
had asked from her in exchange for the dismissal of a case for violation of RA
9165 against Jovencio Patoc, and eventually the release of the latter.

Sylvia Canque and Marissa went outside. Hife followed and overheard
Sylvia tell Marissa that the money was for the scal. Sylvia showed them a Joint
A davit executed by PO1 Jeremias Geromo and PO3 Estanislao Avenido, the
police officers who had arrested Jovencio.

They returned inside the courtroom. Sylvia Canque asked Marissa how
much money she had. Marissa said that she was carrying P50,000.00, and gave
the envelope to Canque, who wrote P50,000.00 on it. The latter put the envelope
inside her bag, and got it out, and put it in again — she seemed undecided, and
then she again asked Marissa how much the envelope contained. Marissa
suggested that she count the money.

While Sylvia was counting the money, Hife gave the pre-arranged signal.
NBI agents Reynaldo Villordon and Michael Angelo Abarico entered the courtroom
followed by other agents, accosted Sylvia Canque and recovered from her the
marked money amounting to P40,000.00. Thereupon, they put Canque under
arrest and informed her of her Constitutional rights.
At the NBI o ce, laboratory examination found Sylvia Canque positive for
fluorescent powder. She was then booked and fingerprinted.
NBI agents Gregorio Y. Algoso, Jr. and Reynaldo C. Villordon identi ed and
con rmed the allegations in the Joint A davit which they executed on June 3,
2004.
On June 1, 2004, their o ce received a letter from a Jonald Ungab,
concerning a certain Marissa Ypanto of Brgy. Polo, Alcantara, Cebu, who had
complained about Sylvia R. Canque, Clerk of Court of the 12th Municipal Circuit
Trial Court of Moalboal-Basian-Alcantara-Alegria, who had asked from her the
amount of P40,000.00 in exchange for the release of her common-law husband,
Jovencio Patoc, and the dismissal of the case led against him, which was then
being heard in the sala of Judge Victor R. Teves. ScaAET

In accordance with their plan to entrap Sylvia Canque, Jedidah

accompanied Marissa Ypanto, who introduced Jedidah to Sylvia Canque as a
friend. Marked money prepared by the Forensic Chemistry Section of the NBI,
consisting of six ve-hundred-peso bills, in the total amount of P40,000.00, had
been given to Ypanto, who was to hand it to Sylvia Canque. When the transaction
was done, and Jedidah had given the pre-arranged signal indicating that the
money had been received by Sylvia Canque, they immediately went inside the
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 o ce of Sylvia Canque, introduced themselves and arrested her. They brought
Sylvia Canque to the NBI o ce to be examined for the presence of uorescent
powder on her hands, booked, photographed and fingerprinted.
Villordon added that, being just nearby, he saw Marissa give the money to
Sylvia Canque, who counted it. At this point, Jedidah gave the pre-arranged signal,
and the agents went inside. His co-agent Michael Albarico announced that they
were NBI agents. All of which took Sylvia Canque by surprise.
Physics Report No. 04-P-3306, dated June 3, 2004, of the Forensic
Chemistry Section of the National Bureau of Investigation states that the
examination conducted on June 3, 2004, at 12:30 p.m. revealed that the left and
right hands of Sylvia Canque bore the presence of yellow fluorescent powder.

For her part, Sylvia Canque identi ed and con rmed the allegations she
made in her Comment, dated July 21, 2004, adding nothing to the same.

Still and all, Canque insisted that it was Jedidah who put the envelope on
her forearm, and that she did not count the money inside it. In fact, it was NBI
Director Esmeralda who counted the money in his o ce. Until then the envelope
was unopened. She denied having written "P50,000.00" on the envelope.
Findings

Canque admitted that an entrapment operation was conducted on her.

Laboratory tests found her hands positive for the presence of uorescent powder.
But Canque denied touching the money herself, claiming that it was Jedidah Hife
who put the envelope on the back of her palm. But if the envelope were (sic) just
put on her forearm, and what was dusted with fluorescent powder was the money,
which was inside the envelope, why were Canque's hands found positive for the
presence of the powder?

The undersigned gives credence to the testimony of the NBI agents, which
was coherent, and given in a forthright manner. No ulterior motive to lie could be
ascribed to the agents. Thus, the undersigned nds the facts to be as narrated by
the agents. 7

The Investigating Judge found respondent Canque guilty of grave misconduct

and recommended the penalty of dismissal, with forfeiture of all her bene ts and
disqualification from re-employment in the government service.
In a Resolution dated February 7, 2006, the Court referred the Investigation
Report to the OCA for evaluation, report and recommendation.
In its Report dated June 13, 2006, the OCA recommended that the Investigation
Report of Investigating Judge Dumdum be set aside and the complaint be investigated
anew upon nding that Canque was not informed of her right to be heard by herself and
counsel during the investigation which allegedly amounted to a denial of her right to
due process; and for the Audit Report of Shortage in the amount of P304,985.00 and
other actuations and de ciencies of respondent Canque to be set in the next En Banc
Agenda. DSATCI

On September 5, 2006, the Court issued a Resolution requiring respondent to le

a Comment, within a non-extendible period of ten days from notice, on the Audit Report
of the COA nding a shortage in her cash collection amounting to P304,985.00.
Respondent failed to comment. Thus, in an En Banc Resolution dated December 4,
2007, the Court considered respondent to have waived her right to le Comment and
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 referred, for the second time, the matter to the O ce of the Court Administrator for
evaluation, report and recommendation.
In a Memorandum dated July 23, 2008, the O ce of the Court Administrator
found Canque liable for gross neglect of duty, gross dishonesty and grave misconduct
and recommended her dismissal from the service with forfeiture of retirement and
other benefits, except accrued leave credits, and with prejudice to re-employment in any
government o ce or instrumentality, including government-owned and controlled
corporations. It further recommended that she be ordered to restitute the amount of
P304,985.00 representing the shortage in the collection of court funds.
We agree with the ndings and recommendation of the O ce of the Court
Administrator.
Grave misconduct is a malevolent transgression of some established and
de nite rule of action — more particularly, unlawful behavior or gross negligence by the
public o cer or employee — which threatens the very existence of the system of
administration of justice. 8 It manifests itself in corruption, clear intent to violate the law
or agrant disregard of established rules. 9 It is considered as a grave offense under
the Civil Service Law 1 0 with the corresponding penalty of dismissal from the service
with forfeiture of retirement bene ts, except accrued leave credits, and perpetual
disqualification from re-employment in government service.
In the case at bar, respondent violated Section 2, Canon 1 of the Code of Conduct
for Court Personnel which states that "[c]ourt personnel shall not solicit or accept any
gift, favor or bene t on any explicit or implicit understanding that such gift shall
in uence their o cial actions". This is su ciently established by the evidence on
record. First, respondent was caught red-handed, in a legitimate entrapment operation,
demanding and receiving money from complainant Ypanto in connection with the
immediate release of the latter's common-law husband Jovencio from police custody;
and the dismissal of the criminal charges against him which were pending before the
MCTC, Moalboal-Badian-Alcantara-Alegria, Cebu — her o cial station. While
respondent was in the act of counting the marked money, she was validly placed under
arrest and apprised of her constitutional rights. Second, her hands were found to have
smudges of the yellow uorescent powder used to mark the bills when her hands were
subjected to ultraviolet light examination. These results of the entrapment operation
clearly establish the guilt of respondent who has merely denied, without support, the
allegations against her.
This is not all. STcaDI

Respondent likewise failed to observe the standard of behavior required of

clerks of court as the chief administrative o cers of their respective courts as shown
by the initial audit report of the COA nding her remiss in the performance of her
administrative duties as clerk of court. These infractions consist of her failure to
update the court cashbook, as well as her failure to explain the missing collection
records 1 1 for the Fiduciary Fund (FF) and the shortage in her cash collection amounting
to P304,985.00. These acts of respondent are in violation of her duties and
responsibilities as clerk of court in the collection and custody of legal funds and fees.
Clerks of court are responsible for court records and physical facilities of their
respective courts and are accountable for the court's money and property deposits
under Section B, Chapter 1 of the 1991 Manual for Clerks of Court and the 2002
Revised Manual for Clerks of Court, viz.:
The Clerk of Court has general administrative supervision over all the
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 personnel of the Court. As regards the Court's funds and revenues, records,
properties and premises, said o cer is the custodian. Thus, the Clerk of Court is
generally also the treasurer, accountant, guard and physical plant manager
thereof.

Thus, as custodians of the court's funds, revenues, records, properties and premises,
clerks of court are liable for any loss, shortage, destruction or impairment of the same.
The cited acts of respondent clearly show her failure to discharge her functions
as clerk of court constituting gross neglect of duty, gross dishonesty and grave
misconduct. Each offense is punishable with dismissal even for the rst time of
commission under Section 22 (a), (b) and (c) of Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service
Laws.
We have held time and again that the Court will not hesitate to impose the
stiffest penalty on those who atrociously display serious lack of integrity, uprightness
and honesty demanded of an employee in the judiciary. Neither shall we tolerate or
condone any conduct that would violate the norms of public accountability and
diminish, or even tend to diminish, the faith of the people in the justice system, 1 2 as in
the case at bar.
Lastly, the Court does not agree with the nding of the O ce of the Court
Administrator in its rst Report dated June 13, 2006 recommending that the
Investigation Report of Investigating Judge Dumdum be set aside and that the
complaint be investigated anew since Canque was not informed of her right to be heard
by herself and counsel during the investigation — an omission allegedly amounting to a
denial of her right to due process. The essence of due process is that a party be
afforded a reasonable opportunity to be heard and to present any evidence he may
have in support of his defense. Technical rules of procedure and evidence are not
strictly applied to administrative proceedings. Thus, administrative due process cannot
be fully equated with due process in its strict judicial sense. 1 3 A formal or trial-type
hearing is not required.
In the case at bar, despite respondent's protestations, the records readily show
that she was afforded the opportunity to present her side as she was directed to le
her comment on the complaint. She was noti ed of the hearing and was in fact present
during the entire proceedings. As to the issue on the legality of her arrest, respondent
has failed to submit evidence in support of her bare claims. EaICAD

IN VIEW WHEREOF , respondent Sylvia R. Canque, Clerk of Court, 12th MCTC,

Moalboal-Badian-Alcantara-Alegria, Cebu is found GUILTY of GRAVE MISCONDUCT ,
GROSS NEGLECT OF DUTY and GROSS DISHONESTY . She is hereby DISMISSED
from the service, with forfeiture of all bene ts, except accrued leave credits, and with
prejudice to re-employment in any branch or instrumentality of the government,
including government-owned or controlled corporations and nancial institutions. She
is further ordered to RETURN to the Court the amount of P304,985.00 to cover the
shortage in the collection of court funds. In case of her failure to restitute the said
amount, in full or in part, the Employees Leave Division of the O ce of Administrative
Services-OCA is directed to compute the balance of respondent's accrued leave credits
and forward such computation to the Finance Division of the Fiscal Management
O ce-OCA for the determination of its monetary value. The said amount plus other
bene ts that respondent may be entitled to shall be applied to the above shortage
incurred.
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 SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Corona, Velasco, Jr., Nachura,
Leonardo-de Castro, Brion, Peralta and Bersamin, JJ., concur.
Carpio Morales and Chico-Nazario, JJ., are on official leave.

Footnotes
1. Rollo, p. 33.
2. Rollo, p. 176.
3. Rollo, p. 146.
4. Rollo, p. 145.
5. Dated July 21, 2004, rollo, p. 108.
6. Dated January 13, 2006.
7. Rollo, pp. 284-286.
8. Fernandez v. Gatan, A.M. No. P-03-1720, May 28, 2004, 420 SCRA 19.
9. Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26, 2004, 424 SCRA 9.
10. Section 23, Rule XIV, Omnibus Rules Implementing Book V of Executive Order No. 292,
as amended by CSC Memorandum Circular No. 19 (1999).
11. Cashbook, passbook, deposit and withdrawal slips, court orders, collection reports, etc.
12. Office of the Court Administrator v. Bernardino, A.M. No. P-97-1258, January 31, 2005,
450 SCRA 88, 119-120.
13. Velasquez v. Hernandez, G.R. Nos. 150732 & 151095, August 31, 2004, 437 SCRA 357.
ESCTaA

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