Anti-Fencing

Law of 1979
PD No. 1612
What is fencing?
Is the act of any person who, with intent to gain, for himself or for
another, shall:
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of robbery
or theft.

A fence" includes any person, firm, association corporation or
partnership or other organization who/which commits the act of
fencing.
What is fencing?
Prior PD No. 1612 in 1979, the fence could only be prosecuted as an
accessory after the fact of robbery or theft, as defined in Article 19 of the
RPC.
But the penalty was light as it was two (2) degrees lower than that
prescribed for the principal in theft.

The Anti-Fencing Law was made to curtail and put an end to the rampant
robbery of government and private properties. With the existence of
ready buyers, the business of robbing and stealing have become
profitable. Hence, a law was enacted to also punish those who buy stolen
properties.

For if there are no buyers then the malefactors could not profit from their
wrong doings.
Elements
1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in any
article, item, object or anything of value, which has been derived from the
proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object
or anything of value has been derived from the proceeds of the crime of
robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another.
More on the Elements
Robbery in Anti-fencing Law covers all kinds of robbery.
i.e. brigandage, highway robbery, even piracy is included in the anti-
fencing law since it is basically robbery in waters)

Theft includes all kinds of theft.
Qualified theft, theft in other SPLs*
Other kinds of theft were transferred to SPLs since it would be easier
to prove since they are now mala prohibita.

*Ex. RA 7832 that punishes theft of electricity, tapping of electric wirings to
secondary lines, and other similar offenses

More on the Elements
One who knows or ought to know/should be known to him
Even if you are in good faith but the circumstances are suspicious,
you are liable.
ex. You bought a Rolex watch at a very low price from a taxi driver.
Fencing is malum prohibitum, criminal intent is immaterial.
Criminal intent not required.
Only intent to gain.

There need not be a previous conviction of robbery or theft.
As long as you show person doesnt own the property and there is
evidence to show there was theft/robbery.

Who are liable for the crime of
fencing?
The person liable is the one buying,
keeping, concealing and selling the stolen
items. If the fence is a corporation,
partnership, association or firm, the one
liable is the president or the manager or the
officer who knows or should have know the
fact that the offense was committed.
Tan vs. People, GR No. 134298
Lim, proprietor of Bueno Metal Industries manufacturing spare parts
for boats, obtained the confession, without the assistance of counsel,
of her employee, Mendez, that he unlawfully took stocks of propellers
from Lims plant and sold them to Tan for a low consideration.
Lim did not report theft to authorities.
Tan was acquitted.
Confession was inadmissible. Therefore, cannot be used against the
accused.
Theft had to be reported in order to establish corpus delicti.
Corpus delicti means the "body or substance of the crime, and, in
its primary sense, refers to the fact that the crime has been
actually committed.
Such confession is insufficient to convict, without evidence of corpus
delicti.
Presumption of Fencing
Mere possession of any good, article, item,
object, or anything of value which has been
the subject of robbery or thievery shall be
prima facie evidence of fencing.
Dizon-Pamintuan vs. People,
GR No. 111426
Teodoro Encarnacion, Usec of DPWH, was robbed by five unidentified men in his home in
Paranaque.
The robbers ransacked the house and took away jewelries and other personal properties
including cash.
Encarnacion was then interviewed by police, was asked to prepare a list of items of jewelry
and other valuables that were lost including a sketch of distinctive items, and was told that a
group was assigned to his case.
An informant informed the police that some of the lost items were in Chinatown.
An entrapment was made and in the stall tended by Norma Dizon-Pamintuan, some of the
jewelries were found as they were displayed for sale.
Dizon was charged with violation of PD 1612.
Dizon contented that the articles belonged to Fredo, the stall owner, and that they were there
only to eat lunch but later on admitted that she was in engaged in the purchase and sale of
jewelry.
Dizon was convicted of Fencing because of the presumption of fencing.
Implementing Rules &
Regulations (IRR)
Used secondhand
article
Any goods, article,
item, object or
anything of value
obtained from an
unlicensed dealer
or supplier,
regardless of
whether the same
has actually or in
fact been used.
Unlicensed
dealer/supplier
Any persons,
partnership, firm,
corporation,
association or any
other entity or
establishment not
licensed by the
government to
engage in the
business of dealing
in or of supplying
the articles defined
in the preceding
paragraph.
Store,
establishment or
entity
Construed to
include any
individual dealing in
the buying and
selling used
secondhand
articles, as defined
in paragraph
hereof.
Buy and Sell
The transaction
whereby one
purchases used
secondhand articles
for the purpose of
resale to third
persons.
Station
Commander
The Station
Commander of the
Integrated National
Police within the
territorial limits of
the town or city
district where the
store, establishment
or entity dealing in
the buying and
selling of used
secondhand articles
is located.
Implementing Rules &
Regulations (IRR)
The law requires the establishment engaged
in the buy and sell of goods to obtain a
clearance or permit to sell used second hand
items, to give effect to the purpose of the law
in putting an end to buying and selling stolen
items. Failure of which makes the owner or
manager liable as a fence.
Clearance/Permit to Sell/Used
Second Hand Articles is required
All stores, establishments or entities dealing in the buy
and sell of any good, article, item, object of anything of
value obtained from an unlicensed dealer or supplier
thereof, shall before offering the same for sale to the
public, secure the necessary clearance or permit from
the station commander of the Integrated National
Police within the territorial limits of the town or city
district where the store, establishment or entity dealing
in the buying and selling of used secondhand articles is
located.


Rules in Dealing with Establishments
Selling Secondhand Articles
Obtain a licence.
Keep an inventory of goods and articles bought
and sold.
Duty of Station Manager to Ensure Proper
Inventory.
Duty to require owner to show proof of acquisition.
To prevent harassment, require proof of
ownership from the seller. Otherwise, ask for an
affidavit of ownership duly notarized.
How can we be protected if we
want to buy second hand goods?
Ask for the receipt evidencing that the seller
bought the article he is selling; if you buy it, get
the receipt
If no receipt?
Pawnshops will ask you to execute an affidavit of
ownership; you will have a copy, they have a copy
Even if no formal affidavit, can state in a piece of
paper that the person is the owner, this is sufficient

Penalties
The penalty of prision mayor, if the value of the property involved is more than 12,000
pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter
sum, the penalty shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, the penalty shall be termed reclusion temporal and the
accessory penalty pertaining thereto provided in the RPC shall also be imposed.
The penalty of prision correccional in its medium and maximum periods, if the value of
the property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos.
The penalty of prision correccional in its minimum and medium periods, if the value of
the property involved is more than 200 pesos but not exceeding 6,000 pesos.
The penalty of arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property involved is over 50 pesos but not exceeding
200 pesos.
The penalty of arresto mayor in its medium period, if such value is over five (5) pesos
but not exceeding 50 pesos.
The penalty of arresto mayor in its minimum period, if such value does not exceed 5
pesos.
Bar Question #1
Anti-Fencing Law; Fencing vs. Theft or Robbery (1995)
What is the difference between a fence and an accessory to theft or
robbery? Explain. Is there any similarity between them?

One difference between a fence and an accessory to theft or robbery is
the penalty involved; a fence is punished as a principal under P.D. No.
1612 and the penalty is higher, whereas an accessory to robbery or theft
under the Revised Penal Code is punished two degrees lower than the
principal, unless he bought or profited from the proceeds of theft or
robbery arising from robbery in Philippine highways under P.D. No. 532
where he is punished as an accomplice, hence the penalty is one degree
lower. Also, fencing is a malum prohibitum and therefore there is no need
to prove criminal intent of the accused; this is not so in violations of
Revised Penal Code.
Bar Question #2
Anti-Fencing Law; Fencing (1996)
Flora, who was engaged in the purchase and sale of jewelry, was
prosecuted for the violation of P.D. 1612, otherwise known as the
Anti-Fencing Law, for having been found to be in possession of
recently stolen Jewelry valued at P100,000.00 at her jewelry
shop at Zapote Road, Las Pinas, Metro Manila. She testified
during the trial that she merely bought the same from one named
Cecilino and even produced a receipt covering the sale. Cecilino,
in the past, used to deliver to her jewelries for sale but is
presently nowhere to be found. Convicted by the trial court for
violation of the Anti-Fencing Law, she argued (or her acquittal on
appeal, contending that the prosecution failed to prove that she
knew or should have known that the Jewelries recovered from
her were the proceeds of the crime of robbery or theft.

Bar Question #2
Anti-Fencing Law; Fencing (1996)
No, Flora's defense is not well-taken because mere possession
of any article of value which has been the subject of theft or
robbery shall be prima facie evidence of fencing (P.D.No. 1612).
The burden is upon the accused to prove that she acquired the
jewelry legitimately. Her defense of having bought the Jewelry
from someone whose whereabouts is unknown, does not
overcome the presumption of fencing against her (Pamintuan vs
People, G.R 111426, 11 July 1994). Buying personal property
puts the buyer on caveat because of the phrases that he should
have known or ought to know that it is the proceed from robbery
or theft. Besides, she should have followed the administrative
procedure under the decree that of getting a clearance from the
authorities in case the dealer is unlicensed in order to escape
liability.

Handouts to follow
fin