San Miguel seeks warrant of arrest vs Indon businessman for ‘qualified theft’

San Miguel Holdings Corporation (SMHC), the infrastructure arm of San Miguel Corporation (SMC), is seeking a non-bailable arrest warrant against Indonesian businessman Shadik Wahono and company for alleged qualified theft, even as it asked the Marikina judge handling the case to inhibit herself, citing bias and conflict of interest, court records show.

SMHC, through its legal counsel, earlier filed a criminal complaint for qualified theft against Wahono alleging unauthorized disbursement of Citra Metro Manila Tollways Corp. (CMMTC) funds of which both SMHC and Wahono at that time are major shareholders. The funds, amounting to R50 million, were allegedly used by Wahono to incorporate another company called Citra Central Expressway Corporation (CCEC).

SMHC’s complaint alleges that the transfer of money was allegedly listed as a “loan” from CMMTC to Wahono’s PT Citra Lamtoro Gung Persad (CLGP), for the incorporation of CCEC. Wahono subsequently entered into a separate partnership with SMHC for CCEC, to undertake the Skyway Stage 3 project. However, SMHC said it did not know that Wahono got the money from CMMTC to fund the establishment of CCEC.

SMHC added that Wahono and his co-accused did not notify the CMMTC Board and shareholders about the alleged loan, neither did they seek Board Approval for such loan. In fact, CMMTC was expressly barred by its contractual obligations from extending any form of loan.

SMHC said because Wahono and company kept the unauthorized disbursement from them, it was duped into paying Wahono and company the same amount of money that it illegally disbursed from CMMTC when SMHC bought into CCEC later on.

SMHC filed a separate criminal complaint for syndicated estafa against Wahono and company for misrepresenting that his company, PT Citra Lamtoro Gung Persada (CLGP), is the legal owner of CCEC shares acquired by SMHC. “CLGP cannot be the legal and beneficial owner of such shares since the subscription price was actually paid for by CMMTC funds of which SMHC was also a beneficial owner at that time,” SMHC alleges in its complaint.

Despite earlier findings by the Office of the City Prosecutor of Manila of probable cause to issue an arrest warrant, presiding Judge Alice C. Gutierrez of the Marikina Regional Trial Court Branch 193, ordered to dismiss the resolution of the prosecutor that included information for qualified theft against all of the accused.

Judge Gutierrez said “SMHC cannot claim the amount (R50M) belongs to it considering that there are other stockholders of the corporation and that the court finds no probable cause for the issuance of warrant of arrest for qualified theft on the ground that they merely performed corporate acts when they transferred the amount from CMMTC to CCEC.”

SMHC countered that “to excuse the theft committed by the accused just because they too are beneficial owners is to say that one partner can rob the other or the majority can steal from the minority,” adding that Judge Gutierrez’ ground for dismissal shows bias and ignorance of the law.

SMHC filed a motion for reconsideration to set aside the order of Judge Gutierrez and issue a warrant of arrest against Wahono and company based on the information submitted by the public prosecutor finding probable cause to indict the accused.

At the same time, SMHC also filed a motion for Judge Gutierrez to inhibit herself from hearing the case and suspend proceedings including any action on the Motion for Reconsideration until she rules on the motion to inhibit.

In its motion, SMHC said there is enough reason to believe Judge Gutierrez may be biased against San Miguel, demonstrating pre-judgment and partiality in favor of the accused, when she outright dismissed key information and evidence and ruled that there was no “prima facie” evidence of qualified theft.