Anti-Fencing Law of 1979PD 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.

Elements1. 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 doesn’t 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 Lim’s 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 #1Anti-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 #2Anti-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 #2Anti-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