Anti-Fencing Law Notes

What is the purpose of the anti-fencing law?

PD 1612 was enacted to impose heavy penalties on persons who profit by the effects of the crimes of
robbery and theft. (Tan vs. People, G.R. No. 134298. August 26, 1999)

What is fencing?

"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. (Sec. 2, PD 1612)

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, firm or other organization, the one liable is the president or
the manager or the officer who knows or should have known the commission of the offense. (Sec. 4,
PD 1612)

What are the elements of the crime of fencing?

The elements of the crime of fencing are:

1. A crime of robbery or theft has been committed;

2. The accused who is not a principal or accomplice in 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 have 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. (Dela Torre vs.
Comelec, G.R. No. 121592, July 5, 1996)

Note:

Fencing may be shown when the buyer bought the article at a price way below ordinary prices.

The prosecution must prove that a crime of theft or robbery has been committed but there need not be
an information filed in court before the crime of fencing is prosecuted.

What is meant by the third element "to know or should have known"?

One is deemed to know a particular fact if he has the cognizance, consciousness or awareness
thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has
something within the mind's grasp with certitude and clarity. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a
high probability of its existence unless he actually believes that it does not exist. On the other hand,
the words "should know" denote the fact that a person of reasonable prudence and intelligence
would ascertain the fact in performance of his duty to another or would govern his conduct upon
assumption that such fact exists. (Dizon-Pamintuan vs. People, G.R. No. 111426, July 11, 1994)

Where should the crime of fencing be filed?

It should be filed in the the place where the property unlawfully taken is found to have been
acquired.
The offender may be prosecuted at the place where he took hold of the property and not at the place
of the commission of the theft or robbery.

Is the crime of fencing a continuing offense of the crime of robbery or theft as to allow the filing
of a complaint or information for its commission in the place where the robbery or theft is
committed and not necessarily where the property unlawfully taken is found to have been
acquired?

No. Fencing is not a continuing offense where the commission of robbery or theft is an essential
element. A continuing crime is a single crime consisting of a series of acts arising from a single
criminal resolution or intent not susceptible of division. For it to exist, there should be plurality of
acts performed separately during a period of time; unity of penal provision infringed upon or
violated; unity of criminal intent or purpose, which means that two or more violations of the same
penal provision are united in one and the same intent leading to the perpetration of the same criminal
purpose or aim.

Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything. "Fencing", upon the
other hand, 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.

The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing does not
require the accused to have participated in the criminal design to commit, or to have been in any wise
involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft
made to depend on an act of fencing in order that it can be consummated. True, the object property in
fencing must have been previously taken by means of either robbery or theft but the place where the
robbery or theft occurs is inconsequential. It may not be suggested, for instance, that, in the crime of
bigamy which presupposes a prior subsisting marriage of an accused, the case should thereby be
triable likewise at the place where the prior marriage has been contracted. (People vs. De Guzman,
G.R. 77368, October 5, 1993)

What case should be filed against the accessory in the crimes of robbery and theft?
The accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal
Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory
but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on
the one hand, and fencing, on the other, are separate and distinct offenses. The State may thus choose
to prosecute him either under the Revised Penal Code or P. D. No. 1612, although the preference for
the latter would seem inevitable considering that fencing is malum prohibitum, and P. D. No. 1612
creates a presumption of fencing and prescribes a higher penalty based on the value of the
property. (Tan vs. People, G.R. No. 134298. August 26, 1999)

Does the law require proof of purchase of the stolen articles to give rise to a presumption of
fencing?

No. The law does not require proof of purchase of the stolen articles as mere possession thereof is
enough to give rise to a presumption of fencing. (Dunlao vs. CA, G.R. No. 111343, August 22, 1996)

Sec. 5 of PD 1416 provides: "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."

The presumption is reasonable for no other natural or logical inference can arise from the established
fact of possession of the proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs.
People, G.R. No. 111426, July 11, 1994)

Is there a need to prove intent to gain?

No. Intent to gain need not to be proven in crimes punishable by a special law such as the Anti-
Fencing Law. The crimes punishable by special laws are called “acts mala prohibita”.

The law has long divided crimes into acts wrong in themselves called "acts mala in se," and acts
which would not be wrong but for the fact that positive law forbids them, called "acts mala
prohibita." This distinction is important with reference to the intent with which a wrongful act is
done. The rule on the subject is that in acts mala in se, the intent governs, but in acts mala prohibita,
the only inquiry is, has the law been violated? When an act is illegal, the intent of the offender is
immaterial. (Dunlao vs. CA, G.R. No. 111343, August 22, 1996)

Does the crime of fencing involve moral turpitude?

Yes. Moral turpitude is defined as an act of baseness, vileness, or depravity in the private duties
which a man owes his fellow men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or
good morals.

Moral turpitude is deducible from the third element. Actual knowledge by the “fence” of the fact
that property received is stolen displays the same degree of malicious deprivation of one’s rightful
property as that which animated the robbery or theft which, by their very nature, are crimes of moral
turpitude. And although the participation of each felon in the unlawful taking differs in point in time
and in degree, both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s
peaceful dominion for gain - thus deliberately reneging in the process “private duties” they owe their
“fellowmen” or “society” in a manner “contrary to xxx accepted and customary rule of right and
duty, justice, honesty or good morals.” The duty not to appropriate, or to return, anything acquired
either by mistake or with malice is so basic it finds expression in some key provisions of the Civil
Code on “Human Relations” and “Solutio Indebiti. (Dela Torre vs. Comelec, G.R. No. 121592, July
5, 1996)