REPUBLIC THE PHILIPPINES

OFFICE OF THE CITY PROSECUTOR

MAKATI CITY

SHAWPAO SUGAR MILLS INC.,

Complainant,
I.S. No. ___________
-v e r s u s-

TONY STARK AND

VIRGINIA STARK, in her Capacity
as Sole Proprietor of
“SWEET SUGAR IMPORT INDUSTRY”,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - x

COMPLAINT-AFFIDAVIT

I, BRUCE WAYNE, of legal age, American Citizen, with business address

at 1007 Mountain Drive Gotham City, Washington DC, USA, after being sworn in
accordance with law, depose and say that:

THE PARTIES

1. Complainant SHAWPAO SUGAR MILLS INC. (“SHAWPAO”) is a

corporation duly organized and existing under the laws of United States of
America, with office address at 101 Independence Avenue, S.E. Washington,
D.C. It is engaged in the business of manufacturing, packaging, and selling sugar
products.

2. Respondent TONY STARK is of legal age, an American national, and

with address at 6/F Unit 4 C & D, Commerce and Industry Plaza Building,
Mckinley Town Center, Park Avenue, Taguig City.

3. Respondent VIRGINIA STARK is the registered owner of SWEET SUGAR

Import Distribution (“SWEET”), a sole proprietorship, with current address at
Ayala Triangle Gardens, Makati Avenue, Bel-Air, 1102, Philippines, Makati.

STATEMENT OF FACTS

4. On or about 21 July 2019, complainant SHAWPAO appointed and

authorized TONY STARK (“STARK”) to act as its agent for the marketing,
distribution and sale of SHAWPAO’s products in the Philippines. Stark accepted
the appointment.

4.1. In an e-mail dated 10 July 2019, SHAWPAO, through its representative Mr.
Robin Hood, offered to appoint and authorize Stark as its agent/representative in
the Philippines. The said e-mail reads:

“Tony all of the agents that we deal with in Asia

operate under a commission basis, this is mostly done on a
5% commission basis. I would suggest rather that you

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 continue to operate the office as we have been, that we
now move to this arrangement. Our relationships with
other agents operate on this commission basis throughout
Asia and have all been very successful and long term, with
both parties benefiting. I am sure with our support you will
be able to secure sales and have successful relationships
with various companies in the Philippines and this will
allow you to become a key part of the network of agents
we have throughout Asia. Of course, any direct out of
pocket expenses, such as airfreight for samples will be
covered by our end. Tony, please let me know if you are in
agreement with this arrangement.”

4.2. In his reply of the same date, 10 July 2019, Stark accepted the
appointment, thus:

“Thank you for your reply…

Your offer of 5% commission is most generous and

welcome. How is this payable.

There are a number of issues and details which

should be addressed in the best interests and success of
SHAWPAO’s market and/or corporate presence in the
Philippines.

I would appreciate a meeting with you and/or

Bruce Wayne to discuss this unique market, its strengths,
weaknesses and opportunities not to mention the powerful
domestic millers.….”

A copy of the e-mail exchange dated 10 July 2019 is attached hereto

as Annex “A”.

5. Complainant SHAWPAO and respondent Stark agreed that Stark would

look for buyers and sell SHAWPAO’s products in the Philippines on a commission
basis, at a commission rate of five percent (5%) on the invoice amount. The
arrangement between SHAWPAO and Stark were as follows:

5.1. Upon finding buyers in the Philippines, respondent Stark would prepare a
purchase order and send the purchase order to SHAWPAO.

5.2. Upon receipt of the purchase order, SHAWPAO would then prepare the
corresponding invoice and arrange for the shipment of the sugar to the
Philippines.

5.3. Under this arrangement, Stark was obligated to remit to SHAWPAO any and
all proceeds from the sale of SHAWPAO’s products in the Philippines (the “Sale
Proceeds”), less [a] Stark’s 5% commission (denominated as “marketing
consultancy fees”; see Annex “A”) and [b] the operating expenses necessary
for the marketing, distribution and sale of SHAWPAO Products (the “Net Sale
Proceeds”).

5.4. SHAWPAO and Stark further agreed that the Net Sale Proceeds would be
remitted to SHAWPAO within ninety (90) days from the time that Stark
receives the Sale Proceeds.

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 5.5. Apart from his 5% commission (marketing, consultancy fees),
respondent Stark was not supposed to earn any profit from the sale of the
SHAWPAO products.

6. Pursuant to the parties’ agreement, respondent Stark marketed,

distributed and sold SHAWPAO’s products in the Philippines through SWEET
SUGAR Import Industry (“SWEET”), a sole proprietorship owned by respondent
Virginia Stark, the wife of Stark.

A copy of the Certification dated 5 March 2019 issued by the Department of

Trade & Industry (DTI), evidencing respondent Virginia Stark’s ownership of the
business name “Sweet Sugar Industry – Branch”, is attached hereto as Annex
“B”.

7. Out of convenience, and to safely hold the Sale Proceeds prior to

remittance to complainant SHAWPAO, respondent Stark opened, in SWEET’s
name, several bank accounts in various provinces (the “Other Accounts”) and a
main bank account in XYZ Bank, Manila Branch in Makati City. One of these
provincial bank accounts was with MAYA-Cebu located in Mandaue City, Cebu
(“MAYA-Cebu Account”).

The XYZ Account and the Other Accounts, including the MAYA-Cebu Account,
were used for the deposit of the Sale Proceeds.

7.1. Upon receipt of any Sale Proceeds, Stark would deposit them either
(a) directly in the XYZ Account, or (b) initially in the Other Accounts (including
the MAYA-Cebu Account) – if more convenient based on the location of the sale
and/or the customers – which would be then transmitted to the XYZ Account.

7.2. Pursuant to the arrangement, Stark would deduct his 5% commission and
SWEET’s operating, marketing, distribution, and other related expenses from the
Sale Proceeds (see par. 5.3 above), and then remit the Net Sale Proceeds to
SWEET’s account in XYZ Bank America.

8. However, sometime in March 2020, complainant SHAWPAO discovered

that respondent Stark and/or SWEET, through respondent Virginia (collectively,
the respondents “Spouses”), without authority from SHAWPAO, had been
withdrawing Net Sale Proceeds from the SWEET Accounts and using such Net
Sale Proceeds for their personal benefit.

9. In the course of Sycip Gorres Velayo & Co.’s (“SGV”) review of SWEET’s
relevant documents, (i.e. 31 December 2019 audited financial statements and
General Ledger Balances as of and for the period from 1 January 2019 up to 2
February 2020) complainant SHAWPAO also discovered that, as of December
2019, respondents Spouses had been deducting from the Net Sale Proceeds,
without SHAWPAO’s authority, their personal expenses, i.e., expenses unrelated
to the operation, marketing, distribution and sale of SHAWPAO’s products. These
deductions should have formed part of the Net Sale Proceeds. These
unauthorized deduction included a deduction of: Eight Hundred
Twenty-Six Thousand Three Hundred Pesos (P826,300.00), consisting
of real estate tax payments for the Spouses’ residence in Cebu City.
The check drawn against the MAYA-Cebu Account was issued on 11
December 2020.

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 A copy of SGV’s report evidencing these improper deductions (in particular, see
page 7, Item 3 and page 19 bottom portion under the heading “Taxes and
Licenses -Cebu) is attached hereto as Annex “C”.

10. Sometime in April 2020, I together with Mr. Robin Hood, met with
respondent Stark to discuss with him the unauthorized drawings and improper
deductions from the XYZ and Other Accounts, including the MAYA-Cebu Account.
During the meeting, respondent Stark admitted that drawings had been made
from the bank account without SHAWPAO’s consent and that these drawings
were over and above the agreed 5% commission to which he was entitled. Black
admitted too that the monies were not due to him but to his wife Virginia and he
promised to use the best of his abilities to have Virginia return the money to
SHAWPAO. Otherwise, he would repay SHAWPAO the unauthorized drawings in
full. Stark further admitted that he understood the ramifications of his wife’s
actions, i.e., SHAWPAO would see the drawings as fraudulent and would wind up
the business if the Starks could not be trusted.

11. On 20 April 2020, complainant SHAWPAO, through counsel, made a

demand to respondents Spouses that they return to SHAWPAO, among others,
the amount of P826,300.00, representing the improper and fraudulent charging
of expenses relating to the payments on respondents Spouses’ personal property
in Cebu, City.

A copy of the demand letter to respondents Spouses is attached hereto as

Annex “D”.

12. To date, respondents Spouses have not heeded complainant

SHAWPAO’s demand. In fact, they have not responded to SHAWPAO’s demand
letter.

THE CRIME COMMITTED

13. I understand from our lawyer that respondents Spouses’ acts of (a)
withdrawing complainant SHAWPAO’s Net Sale Proceeds and (b) deducting
personal and improper expenses from the Sale Proceeds, without SHAWPAO’s
authority and approval, from the MAYA-Cebu Account in Cebu City is a clear
misappropriation and/or conversion of complainant SHAWPAO’s Net Sale
Proceeds. This is unquestionably punishable under Article 315(1)(B) OF THE
Revised Penal Code (“RPC”), which provides:

“Art. 315. Swindling (estafa). – Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:

xxx

1. With unfaithfulness or abuse of confidence, namely:

xxx

(b) By misappropriating or converting, to the prejudice of another,

money, goods or any other personal property, received by the offender in
trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same,

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 even though such obligation be totally or partially guaranteed by a bond,
or by denying having received such money, goods, or other property
x x x.”

14. The elements of Estafa under Article 315(1)(b) are as follows:

a. That money, goods, or other personal property be received by the offender in

trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return the same;

b. That there be misappropriation or conversion of such money or property by

the offender, or denial on his part of the receipt of the same;

a. That such misappropriation or conversion, or denial, is to the prejudice of

another; and

b. That there is a demand made by the offended party to the offender (II
Reyes, The Revised Penal Code, 1995 ed., 658).

15. Respondents Spouses’ act of misappropriating and/or converting

complainant SHAWPAO’s Net Sale Proceeds to their own benefit and to
SHAWPAO’s prejudice, in conspiracy with each other, satisfy all the elements of
Estafa under Article 315(1)(b) of the RPC.

16. Respondents Spouses held the Sale Proceeds in, among others, the
MAYA-Cebu Account in trust for, and/or with a duty to administer the same on
behalf of, complainant SHAWPAO.

16.1. As stated in paragraphs 4 to 6 above, Stark as SHAWPAO’s

agent/representative, acting through SWEET was obligated to remit to SHAWPAO
the Sale Proceeds, less only (a) Stark’s 5% commission and (b) the necessary
operating, marketing, distribution and other related expenses incurred in
the sale of SHAWPAO’s Products.

16.2 By virtue of SHAWPAO’s and Stark’s agreement, and the circumstance that
Stark acted through SWEET, respondents Spouses administered the money in,
among others, the MAYA-Cebu Account, and received and held the same in trust
for SHAWPAO. As shown in paragraph 7 above, Stark, through SWEET/Virginia,
maintained the MAYA-Cebu Account to hold the Sale Proceeds until remitted
directly to SHAWPAO in America or to the XYA Account for remittance to
SHAWPAO in America.

17. Respondents Spouses took and misappropriated and/or converted the

amount of Eight Hundred Twenty-Six Thousand Three Hundred Pesos
(P826,300.00), which was deposited in MAYA-Cebu, by improperly and
fraudulently deducting said amount from the Net Sales Proceeds and, instead of
remitting the amount to SHAWPAO, used it to pay their personal real estate
taxes in Cebu City.

18. Respondent Stark, in conspiracy with his wife respondent Virginia

Stark, abused the confidence reposed in him, and violated his fiduciary duty, as
agent of complainant SHAWPAO.

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 18.1. Respondents Spouses’ act of deducting the amount of P826,300.00 from
the MAYA-Cebu Account and not remitting the same to SHAWPAO constitutes
misappropriation and/or conversion of SHAWPAO’s personal property.

19. As a result of respondents Spouses’ said misappropriation and/or

conversion, complainant SHWPAO was prejudiced in the amount of P826,300.00
representing the improper deductions fraudulently applied to real estate tax
payments for the Spouses’ residence in Cebu City.

20. I am executing this Affidavit to attest to the truth of the foregoing

statements, for the purpose of instituting criminal proceedings against
respondents TONY STARK and VIRGINIA STARK, for the commission of Estafa in
violation of Article 315(1)(b).

21. It is respectfully prayed that the Honorable Public Prosecutor issue

and file the corresponding Informations against respondents for the above
crimes in the proper court. Affiant prays for other remedies just and equitable
under the premises.

BRUCE WAYNE
Affiant

SUBSCRIBED AND SWORN to before me this 25th day of

May 2020 in Makati City.

____________________
Assistant City Prosecutor

CERTIFICATION

I HEREBY CERTIFY that I have personally examined the

affiant, and I am satisfied that he voluntarily executed and
understood this Complaint-Affidavit.

_____________________
Assistant City Prosecutor

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