REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

National Capital Region
Branch 39
Manila

PEOPLE OF THE PHILIPPINES,

Complainant,

- versus
Criminal Cases No.14-303459
14-303923

TYRONE ONG, et.al

Accused.
x--------------------------------------------------------------------------------------------------x

URGENT MOTION FOR INHIBITION

Accused TYRONE ONG, by counsel, most respectfully states:

PREFATORY STATEMENT

“There cannot be any question that the

reglementary mandate that "justice shall be
impartially administered" implies that those
who are called to administer it must act freely
from all the factors that may impair their
impartiality. Bias is one of them. It deprives
the person shackled by it of the opportunity to
have a clear view of the pending issue so as to
form a sound judgment and of the freedom of
choice between right and wrong in a given
litigation.” 1

1. It is respectfully submitted that the Honorable Presiding Judge

Noli C. Diaz had displayed manifest partiality and bias as shown by the
following facts:

1
People of the Philippines vs. Eusebio Lopez, et.al, G.R. No. L-1243, 14 April 1947.
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Urgent Motion for Inhibition

1.1. On 22 December 2015, the Hon. Presiding Judge issued

an Order denying the Motion for Reconsideration of accused Ong
and affirmed the Order dated 03 August 2015 discharging accused
Perfecto Villanueva, Ramoso Ramos, and Alfredo Compoc as State
Witnesses pursuant to Republic Act No. 6981 and excluding them
from the Amended Information.

1.2. Thus, on 04 March 2016, Accused Ong filed a Petition for

Certiorari and Prohibition (with Application for Temporary Restraining
Order and/or writ of Preliminary Injunction) before the Honorable Court
of Appeals assailing the propriety of the issuance of the said Order.
He pointed out the capricious and whimsical manner by which the
Hon. Presiding Judge ruled on the Motion for Reconsideration. On the
same day, he also filed a Manifestation and Motion asking for the
suspension of proceedings in view of his pending Petition as the
Prosecution was scheduled to present accused Perfecto Villanueva as
its first witness.

1.3. On 09 March 2016, the Hon. Presiding Judge denied

outright the Manifestation and Motion, and allowed the Prosecution to
present Villanueva despite the fact that Accused Ong consistently
reiterated the principle of judicial courtesy. Accused Ong pointed out
that the Court of Appeals has not yet even raffled his Petition to a
Division.

1.4. On 28 March 2016, Accused Ong filed a Motion for

Reconsideration of the afore-mentioned Order of the Honorable
Presiding Judge. Considering that the said Petition was still
scheduled for raffle to the appropriate Division, the Honorable Court
should have at the very least deferred the proceedings as to Accused
Perfecto Villanueva, Ramoso Ramos and Alfredo Compoc so as to
give sufficient time for the Court of Appeals to rule on the
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Urgent Motion for Inhibition

provisional reliefs prayed for. Unfortunately, the Honorable Court

was apparently too resolved and eager to put accused Perfecto
Villanueva on the witness stand. In so doing, the Honorable Court
simply reasoned that there was no Temporary Restraining Order
(TRO) issued, thus, the direct examination of the said witness must
proceed. With all due respect, this is not only illogical but also
impossible. Since the Petition has not been even raffled yet, certainly,
no court could possibly issue the TRO

1.5. In denying accused Ong's Manifestation and Motion, it

would seem that the Honorable Presiding Judge disregarded the
right of Accused Ong to avail of his provisional remedies as he did
not even give the Court of Appeals time to act on the said Petition.
Instead, he denied the Manifestation and Motion outright, making it
appear that the Court of Appeals had already acted on the Petition
and no TRO was issued. The Honorable Presiding Judge should
have at least allowed the Court of Appeals to rule on his provisional
reliefs.

1.6. In allowing accused Villanueva to testify despite the

pendency of the Petition for Certiorari of accused Ong, the Honorable
Presiding Judge effectively rendered moot the very issue raised in the
Court of Appeals, that is, the Order discharging accused Villanueva,
Ramos and Compoc as state witnesses and excluding them from the
Amended Information.

2. Further, the Honorable Presiding Judge had the temerity to

disregard the basic rules of procedure to the detriment of Accused Ong.
This is evident in the following circumstances:

2.1. During the direct examination of Villanueva, the

Prosecution asked the witness to identify several documentary
evidence attached to his Judicial Affidavit. However, a perusal of the
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Urgent Motion for Inhibition

documents would reveal that all were mere photocopies. Thus,

counsel for Accused Ong immediately objected to its identification as
it is a basic procedural rule that the original copies of the documents
must be presented in accordance with Sections 3, 7 and 8 of the
Judicial Affidavit Rule.

2.2. Unfortunately, the Hon. Presiding Judge still allowed

the witness to identify the same despite the clear mandate of the law.
It would seem that the Honorable Presiding Judge brushed aside the
best evidence rule provided under Section 3, Rule 130 of the Revised
Rules of Court which states:
“Section 3. Original document must be
produced; exceptions. — When the subject of
inquiry is the contents of a document, no
evidence shall be admissible other than the
original document itself, xxx” (emphasis ours)

2.3. Records would also bear that the Hon. Presiding Judge
allowed Villanueva to identify certain documentary evidence, despite
strong objection that Villanueva is incompetent to identify these
documents as he does not have any personal knowledge in the
issuance or execution thereof. Thus, the photocopies of the following
documents were identified by Villanueva:

a. Purported Identification Card of accused Ong

as Consultant of the National Bureau of
Investigation;

b. Purported Contract of Services allegedly

showing that Accused Ong holds office at
Robinsons Galleria;

c. Purported Check in the amount of Two

Hundred Thousand Pesos and the signature
appearing thereon as allegedly belonging to
accused Ong; and

d. Purported Cash vouchers allegedly issued by

accused Ong.
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Urgent Motion for Inhibition

2.4. Such act of allowing the witness to identify the above-

mentioned documents clearly runs counter to Section 36, Rule 130 of
the Revised Rules of Court which provides:

“Section 36. Testimony generally confined to

personal knowledge; hearsay excluded. — A
witness can testify only to those facts
which he knows of his personal knowledge;
that is, which are derived from his own
perception, except as otherwise provided in
these rules.” (emphasis ours)

2.5. It is evident that Villanueva identified documents he had

no personal knowledge of, and sadly, the Hon. Presiding Judge still
allowed the same. Instead of sustaining the objections of accused
Ong, he merely noted the objection and allowed the Prosecution to
proceed. With all due respect, this is not only a deliberate disregard
of the rules, but also a display of manifest partiality because he
indirectly permitted the Prosecution to present such pieces of
evidence which should have been excluded in the first place.

3. In addition, when the Prosecution asked Ballistician III

Yasmin Abarientos from the Firearms Investigation Laboratory Division of
the NBI to answer questions pertaining to the firearm and bullets allegedly
used for the crime, the Hon. Presiding Judge allowed the same despite the
vehement objections of accused Ong. It must be emphasized that
Villanueva was still on the witness stand. Counsel for accused Ong
repeatedly pointed out that the Prosecution was already making the NBI
Representative as its witness without her being under oath. Unfortunately,
the Hon. Presiding Judge even defended the Prosecution when he said that
it was the usual practice when an NBI representative is invited. These are
highly unprocedural and seriously undermine the confidence in this
Honorable Court.
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Urgent Motion for Inhibition

3.1. In allowing the NBI Representative to testify without

putting her on the witness stand, the Hon. Presiding Judge
completely disregarded the constitutional right of Accused Ong to
cross examine the witnesses against him which is enshrined in
Section 14 (2) of Article III of the 1987 Constitution, thus:

“ (2) In all criminal prosecutions, the accused

shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a
speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and
the production of evidence in his behalf.
xxx.”(emphasis ours)

3.2. Clearly, the Hon. Presiding Judge violated the right of

Accused Ong to confront and cross-examine the NBI Representative
as to matters she stated before this Honorable Court. Emphasis must
be made on the fact that the questions asked by the Prosecution were
crucial to the present case as it pertain to the firearm allegedly used.
All of her answers were made of record as if she was at that time
testifying for the Prosecution. She was never a witness, yet the
Honorable Presiding Judge allowed her to do everything that a
witness does, except to require her to sit on the witness stand and put
her under oath.

3.3. The Hon. Presiding Judge must be reminded that the

right of accused to confront and cross-examine witnesses against him
cannot be taken lightly. The Supreme Court in People vs. Libo-on
(G.R. No. 136737, 23 May 2001), emphatically ruled in this wise:

“The right to confrontation is one of the

fundamental rights guaranteed by the Constitution
to the person facing criminal prosecution who
should know, in fairness, who his accusers are and
must be given a chance to cross-examine them on
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Urgent Motion for Inhibition

their charges. The chief purpose of the right of

confrontation is to secure the opportunity for
cross-examination, xxx.”(emphasis supplied)

3.4. The unwarranted disregard by the Prosecution of the

rules and the constitutional rights of accused Ong is so glaring but
the Hon. Presiding Judge simply turned a blind eye. Indeed, as a
magistrate of justice, the Hon. Presiding Judge at that point could
have prevented the same. Unfortunately, he refused to do so and
allowed himself to be used by the Prosecution. This only highlighted
his manifest partiality and bias in favor of the Prosecution.

4. Further, the Hon. Presiding Judge displayed manifest

partiality and bias when he allowed the Prosecution to propound questions
to Villanueva which are not part of his Judicial Affidavit. This was despite
the vehement objection of the counsel for Accused Ong for the questions
have no basis and such line of questioning is not allowed under the Judicial
Affidavit Rule.

4.1. The Hon. Presiding Judge even agreed with the

Prosecution that the questions were simply follow up questions
necessarily included in the direct examination. Counsel for accused
Ong reiterated that there was no basis for the line of questioning
being made by the Prosecution as it could not even lay the basis and
state the specific question in the Judicial Affidavit that he was
referring to. However, when asked what his ruling on the objection
was, the Hon. Presiding Judge simply said “Noted”.

4.2. This is clearly an utter disregard of the Judicial Affidavit

Rule. It should be borne in mind that the rationale behind the
submission of a Judicial Affidavit is for it to take the place of the
direct testimony of the witness. Thus, Section 2 paragraph 1 of the
Judicial Affidavit Rule in relation to Section 3 thereof provides the
following:
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Urgent Motion for Inhibition

“Section 2. Submission of Judicial Affidavits and

Exhibits in lieu of direct testimonies. – xxx

(1) The judicial affidavits of their witnesses,

which shall take the place of such witnesses'
direct testimonies; and

xxx

Section 3. Contents of Judicial Affidavit. - A

judicial affidavit shall be prepared in the language
known to the witness and, if not in English or
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:

xxx

(d) Questions asked of the witness and his

corresponding answers, consecutively
numbered, that:

(1) Show the circumstances under which the

witness acquired the facts upon which he
testifies;

(2) Elicit from him those facts which are relevant

to the issues that the case presents; and

(3) Identify the attached documentary and object

evidence and establish their authenticity in
accordance with the Rules of Court; xxx
(emphasis ours)

4.3. The foregoing provisions require that the Judicial

Affidavit contain all questions that are supposed to be asked and
testified to by the witness. Such that additional questions which have
not been included are certainly no longer allowed. This is consistent
with Section 9 (b) of the Judicial Affidavit Rule which provides that
"no further judicial affidavit, documentary, or object evidence shall
be admitted at the trial."

4.4. Unfortunately, the Hon. Presiding Judge, aside from

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Urgent Motion for Inhibition

disregarding these provisions, even allowed these additional

questions when clearly the Prosecution failed to lay down its basis
for asking these questions. These are acts which clearly favor the
Prosecution which should not be tolerated.

5. It cannot be denied that the Hon. Presiding Judge had been

deliberately too generous and too lenient with the Prosecution in utter
disregard of the rights of accused Ong and the procedural rules. In several
instances, instead of ruling on the objections, the Honorable Presiding
Judge would simply state that the Court had already noted the objection.
He neither sustained nor overruled the objection.

5.1. It is humbly submitted that such act of the Honorable

Presiding Judge is a direct contravention of the rules on evidence.
Under Section 38, Rule 132 of the Revised Rules of Court, the ruling
of the court must be given immediately after the objection is made
and should always be made during the trial. Thus,

“Section 38. Ruling. — The ruling of the court

must be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the
question presented; but the ruling shall always
be made during the trial and at such time as
will give the party against whom it is made an
opportunity to meet the situation presented by
the ruling.

The reason for sustaining or overruling an objection

need not be stated. However, if the objection is based
on two or more grounds, a ruling sustaining the
objection on one or some of them must specify the
ground or grounds relied upon.”
(emphasis ours)

5.2. It is plain to see that the Hon. Presiding Judge is duty-

bound to immediately give his ruling once an objection has been
made. To be sure, mere utterance of the word “noted” can hardly be
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Urgent Motion for Inhibition

interpreted as a ruling explicitly provided in the afore-quoted

provision.

6. From the foregoing, it is clear that the Hon. Presiding Judge

conveniently brushed aside all the procedural lapses committed by the
Prosecution in so far as it would favor them.

7. It bears stressing that the duty of judges is not only to

administer justice but also to conduct themselves in a manner that would
avoid any suspicion of irregularity. Indeed, as a dispenser of justice, the
Judge is supposed to act with utmost impartiality and objectivity. However,
as can be gleaned from the foregoing conduct of the Hon. Presiding Judge,
it is evident that no fair decision could be obtained as he would simply
disregard the rules of procedure if only to work in favor of the Prosecution.
This is certainly a ground for a judge to recuse himself from the case.

8. As aptly observed in the case of People of the Philippines, et.al vs.

Governor Kho, et.al (G.R. No. 139381, 20 April 2001), thus:

“A judge may not be legally prohibited from

sitting in a litigation. But when suggestion is made of
record that he might be induced to act in favor of
one party or with bias or prejudice against a
litigant arising out of circumstances reasonably
capable of inciting such a state of mind, he should
conduct a careful self-examination. He should
exercise his discretion in a way that the people's
faith in the courts of justice is not impaired. A
salutary norm is that he reflect on the probability
that losing party might nurture at the back of his
mind the thought that the judge had
unmeritoriously tilted the scales of justice against
him. That passion on the part of a judge may be
generated because of serious charges of
misconduct against him by a suitor or his counsel,
is not altogether remote. He is a man, subject to
the frailties of other men. He should, therefore,
exercise great care and caution before making up
his mind to act or withdraw from a suit where
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Urgent Motion for Inhibition

that party or counsel is involved. He could in

good grace inhibit himself where that case could
be heard by another judge and where no
appreciable prejudice would be occasioned to
others involved therein. On the result of his decision
to sit or not to sit may depend to a great extent the all-
important confidence in the impartiality of the
judiciary. If after reflection he should resolve to
voluntarily desist from sitting in a case where his
motives or fairness might be seriously impugned, his
action is to be interpreted as giving meaning and
substance to the second paragraph of Section 1, Rule
137. He serves the cause of law who forestalls the
miscarriage of justice” (emphasis ours)

9. In the present case, it is without doubt that the Hon. Presiding

Judge has exhibited actions that gave rise to a perception of bias. These
actions are certainly not well within the meaning of impartiality and for
these reasons, it is only but proper for the Hon. Presiding Judge to
voluntary inhibit himself.

10. It must be borne in mind that “judges must at all times

maintain and preserve the trust and faith of party-litigants in court’s
impartiality, and the slightest doubt in the actions of a judge, whether
well grounded or not, will leave the judge no better alternative than to
recuse himself as the ideal mode to preserve the image of the judiciary”
(Latorre vs. Ansaldo, 358 SCRA 311). Otherwise, party-litigants might lose
confidence in the judiciary and destroy its nobleness and decorum.
11. Hence, in light of the foregoing and so as to give the accused
Tyrone Ong the reassurance that justice could still be served in this case
without fear or favor, it is now necessary for the Honorable Presiding Judge
NOLI C. DIAZ to immediately inhibit himself from further hearing the
above-captioned case.

PRAYER
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Urgent Motion for Inhibition

WHEREFORE, in view of the foregoing, accused TYRONE ONG

most respectfully prays that the Honorable Presiding Judge NOLI C. DIAZ
immediately INHIBIT himself from further conducting the hearing in the
above-captioned case and that this Motion be RESOLVED FIRST before his
Motion for Reconsideration dated 28 March 2016.

Accused TYRONE ONG also prays for other just and equitable relief.

04 April 2016, Makati City for Manila.

GANA ATIENZA AVISADO LAW OFFICES

Counsel for Accused Tyrone Ong
3rd Floor HPL Building
No. 60 Sen. Gil Puyat Avenue, Makati City
Telephone Nos. (632) 889-4263 to 65
Fax No. (632) 844-0831
Email Address: ganaandpartners@pldtdsl.net

By:

MARIA CRISTINA B. GARCIA-RAMIREZ

PTR No. 5321868; 01-05-16; Makati City
IBP Lifetime Member No. 010390; Makati City
Roll of Attorneys No. 51740
MCLE Compliance No. IV-0012090, January 30, 2013

ROSE ANNE P. ROSALES

PTR No. 5321867; 01-05-16; Makati City
IBP Lifetime Member No. 09063; Quezon Province
Roll of Attorneys No. 58121
MCLE Compliance No. IV-0012118, January 30, 2013

CHRISTINE HEIDE A. ROSALES

PTR No. 5326791; 01-06-16; Makati City
IBP Lifetime Member No. 012672; Quezon City
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Urgent Motion for Inhibition

Roll of Attorneys No. 63616

MCLE Compliance: Exempted

NOTICE OF HEARING

HON. BRANCH CLERK OF COURT

Regional Trial Court
Branch 39, Manila

HON. LEONCIO SUAREZ

Public Prosecutor
Regional Trial Court, Branch 39
Manila

ATTY. LEONARDO S. DE VERA

Private Prosecutor
Unit ABN 7th Floor, Westgate Tower
Penthouse B, Windsor Tower
163 Legaspi Street, Legaspi Village
Makati City

Greetings:

Please submit the foregoing Urgent Motion for Inhibition for the
consideration and approval of the Honorable Court on 06 April 2016 at
10:00 a.m. or as soon thereafter as counsel and matter may be heard.

CHRISTINE HEIDE A. ROSALES

COPIES FURNISHED: (By Personal Service)

HON. LEONCIO SUAREZ

Public Prosecutor
Regional Trial Court, Branch 39
Manila

ATTY. LEONARDO S. DE VERA

Private Prosecutor
Unit ABN 7th Floor, Westgate Tower
Penthouse B, Windsor Tower
163 Legaspi Street, Legaspi Village
Makati City
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Urgent Motion for Inhibition