1. Concept
Fencing – refers to the crime of buying or transacting with stolen goods knowing or should have known that they are proceeds of a crime.
a. Legal basis
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.” (P.D. 1612, Section 2[a])
Fence – includes “any person, firm, association corporation or partnership or other organization who/which commits the act of fencing.” (P.D. 1612, Section 2[b])
b. Legislative history
Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60 thereof. Nothing, however, the reports from law enforcement agencies that “there is rampant robbery and thievery of government and private properties” and that “such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties,” P.D. No. 1612 was enacted to “impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft.” Evidently, 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, he ceases to be a mere accessory but becomes a principal in the crime of fencing. Elsewise 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 a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing14 and prescribes a higher penalty based on the value of the property. (Dizon-Pamintuan v. People, G.R. No. 111426, July 11, 1994, Per Davide, Jr., J.)
2. Anti-Fencing
a. Elements
The essential elements of fencing:
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. (Estrella v. People, G.R. No. 212942, June 17, 2020, Per Inting, J.)
1) A crime of robbery or theft has been committed
For there to be fencing, there must first be a crime of robbery or theft to be committed. Fencing presupposes that there was a prior robbery or theft of the stolen things that are being sold or transacted. Thus, if there is no robbery or theft, there is no fencing.
Tan v. People, G.R. No. 134298, August 26, 1999, Per Pardo, J.:
• Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed.
Ong v. People, G.R. No. 190475, April 10, 2013, Per Sereno, J.:
• We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence in proving that all the elements of fencing are present in this case.
• First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was corroborated by Jose Cabal – the caretaker of the warehouse where the thirty-eight (38) tires were stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and an Inventory List. Witnesses for the prosecution likewise testified that robbery was reported as evidenced by their Sinumpaang Salaysay taken at the Southern Police District at Fort Bonifacio. The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila on 27 February 1995.
• Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen (13) out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial numbers of stolen tires corresponds to those found in Ong’s possession. Ong likewise admitted that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he was issued Sales Invoice No. 980.
• Third, the accused knew 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. 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. Ong, who was in the business of buy and sell of tires for the past twenty-four (24) years, ought to have known the ordinary course of business in purchasing from an unknown seller. Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for proof of ownership of the tires. The entire transaction, from the proposal to buy until the delivery of tires happened in just one day. His experience from the business should have given him doubt as to the legitimate ownership of the tires considering that it was his first time to transact with Go and the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.
b. Transacts with stolen goods
In fencing, the offender 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 crime of robbery or theft.
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. (Estrella v. People [2020], supra.)
[T]he 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 a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing14 and prescribes a higher penalty based on the value of the property. (Dizon-Pamintuan v. People [1994], supra.)
Lopez v. People, G.R. No. 249196, April 28, 2021, Per Zalameda, J.:
• [T]he prosecution failed to prove the remaining elements of fencing. There is no evidence shown that petitioner is neither the principal nor an accomplice of the alleged thievery reported by Mendoza, and that he possessed or disposed of the latter’s alleged bicycle. No proof was offered to show that petitioner had knowledge that the bicycle he gave to Magno was stolen, or that he had intent to gain therefrom. It is necessary to remember that in all criminal prosecutions, the burden of proof is on the prosecution to establish the guilt of the accused beyond reasonable doubt. It has the duty to prove each and every element of the crime charged in the information to warrant a finding of guilt for the said crime.
Cahulogan v. People, G.R. No. 225695, March 21, 2018, Per Perlas-Bernabe, J.:
• In this case, the courts a quo correctly found that the prosecution was able to establish beyond reasonable doubt all the elements of the crime of Fencing, as it was shown that: (a) Lariosa sold to petitioner the subject items without authority and consent from his employer, Tan, for his own personal gain, and abusing the trust and confidence reposed upon him as a truck helper; (b) petitioner bought the subject items from Lariosa and was in possession of the same; (c) under the circumstances, petitioner should have been forewarned that the subject items came from an illegal source, as his transaction with Lariosa did not have any accompanying delivery and official receipts, and that the latter did not demand that such items be replaced with empty bottles, contrary to common practice among dealers of soft drinks; and (d) petitioner’s intent to gain was made evident by the fact that he bought the subject items for just ₱50,000.00, lower than their value in the amount of ₱52,476.00. “[T]he Court finds no reason to deviate from the factual findings of the trial court, as affirmed by the CA, as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case. In fact, the trial court was in the best position to assess and determine the credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the same.”
3) Knowledge
The law requires that the offender has knowledge or ought to have known that the things being transacted were proceeds of the crime of robbery or theft. For clarity, the bare minimum requirement is that the offender ought to have known – and thus actual knowledge is not necessary.
Estrella v. People, G.R. No. 212942, June 17, 2020, Per Inting, J.:
• The RTC and CA correctly found that the prosecution was able to establish beyond reasonable doubt all the elements of the offense of Fencing considering the following:
• First, the occurrence of theft was duly established by the prosecution. Yao categorically testified that despite the downsizing of PAL’s operation in 1998 or reduction of Aircraft, there was still unusual upward movement of PAL’s Skydrol consumption.40 Thus, it was concluded that someone was stealing Skydrol from PAL which prompted its management to conduct an investigation and seek the assistance of the PNP-CIDG.
• Second, the petitioner was caught in possession and in the process of disposing pails of Skydrol to Air Philippines. PO3 Bolido testified in detail how he and his team caught the petitioner in possession of three pails of Skydrol.
• [Based on a testimony by a witness], it can be gleaned that petitioner failed to produce Jupel, the alleged source, and the legal documents supporting the ownership of the confiscated pails of Skydrol which clearly suggest that the pails of fluid proceed from the crime of theft. With this, the PNP-CIDG recommended the filing of the crime of Fencing against him. PO3 Bolido’s statements on how petitioner was found handling the three pails of Skydrol were corroborated by Yao’s testimony. Yao likewise explained that only PAL and no one else owned the Skydrol, which was exclusively supplied by Solutia.
• [T]he manufacturer/supplier of Skydrol itself certified that it never authorized Aerojam to sell the subject hydraulic fluids and these were sold only to PAL and not to any other airline. There is also evidence showing how PAL acquired the subject pails of hydraulic fluid. Solutia’s Certificate of Analysis44 reveals that Lot Number QK31001 was shipped out on January 19, 1999. The Bill of Lading45 for 288 pieces of Skydrol five-gallon pails shows that they were shipped to PAL on January 27, 1999. Likewise, the corresponding invoice also shows that PAL was billed P62,784.00 for 1,440 gallons of Skydrol fluid shipped on January 27, 1999. Undoubtedly, the prosecution had proven that PAL owned the subject three Skydrol pails of hydraulic fluid confiscated from the petitioner.
• Third, for failing to prove ownership of the Skydrol confiscated from him, petitioner should have known that the three Skydrol pails were derived from an illegal source. Petitioner failed to present his alleged supplier, a certain “Jupel” and the pertinent documents proving that their transaction was legal.
• As to the last element of Fencing, the Court rules that the RTC and the CA committed no error in finding the petitioner’s intent to gain. There is no question that the pails of Skydrol Hydraulic Fluid were found in possession of petitioner. The positive identification by PO3 Bolido and Yao that the petitioner was caught in possession of the subject pails of skydrol, and the pieces of evidence pointing to PAL as the owner of these pails of hydraulic fluid gave rise to a presumption of Fencing under the law.
4) Intent to gain for himself or for another
The offender should have intent to gain for him/herself or for another. This requirement should be clearly proven beyond reasonable doubt to establish the deceit on the part of the offender.
Masil v. People, G.R. No. 241837, January 05, 2022, Per Inting, J.:
• According to the prosecution, Nimfa N. Esteban (Nimfa) manages a passenger jeepney with Plate Number NYE-443 owned by her sister, Elizabeth Eustaquio. On July 4, 2010, she hired Eugene Labramonte (Eugene) as driver. On the scheduled date, Eugene took the jeepney from her residence to take passengers from Baclaran to Blumentritt. They agreed that the return of the jeepney will be at 10:00 p.m. However, Eugene failed to return the jeepney at the agreed time. Nimfa looked for Eugene but to no avail. The next day, she reported the theft of the jeepney to the Philippine National Police (PNP) Anti-Carnapping Unit in Caloocan City. She also went to the Highway Patrol Group, PNP Headquarters, Camp Crame, Quezon City to report the incident.8
• On July 9, 2010, Nimfa received a call from a concerned citizen telling her that a vehicle was seen being dismantled in Brgy. 180, Caloocan City. The report led to the apprehension of Wilfredo, who was caught in the act of dismantling the jeepney at a junk shop in Little Baguio, Caloocan City.9 When confronted by the police officers, Wilfredo denied knowing Eugene but admitted that the other parts of the dismantled jeepney had already been sold to a junk shop owned by petitioner.
• Meanwhile, a barangay tanod tipped off Police Officer II Cesar Garcia (PO2 Garcia) that Eugene was detained in the barangay hall. Thereat, PO2 Garcia apprehended Eugene. Based on Eugene’s admission, he sold the missing jeepney parts to AE Junk Shop owned by petitioner.
• With Wilfredo, the police officers proceeded to petitioner’s junk shop where they saw and recovered the dismantled parts of the jeepney previously marked by Nimfa’s husband, to wit: “the D-5, injection pump, fan blade, rocker arm, and air breather.” As the stolen items were recovered from the possession of petitioner, the police officers charged petitioner and Wilfredo with violation of PD 1612.
• [HELD] The prosecution established the requisite quantum of evidence in proving beyond reasonable doubt all the elements of the offense of Fencing.
• First, the evidence of the prosecution shows that, on July 4, 2010, the jeepney vehicle owned by Nimfa’s sister was stolen by its driver who, in a separate case, was convicted of Qualified Theft. Later, the police officers saw the lost jeepney being dismantled or cannibalized by petitioner’s co-accused, Wilfredo. Through the confession of Wilfredo, the police officers went to the junk shop of petitioner where they saw and recovered some of the dismantled parts of the jeepney. The police officers were able to identify the dismantled parts through the markings placed thereon by Nimfa’s husband.
• Second, petitioner never denied the fact that the missing parts of the lost jeepney were recovered from his junk shop, AE Junk Shop, in Caloocan City. He likewise admitted that he bought the dismantled parts from his co-accused, Wilfredo. He asserted that it was his wife who was first invited to the police station; but later on, he agreed to be held in her place and asserted that he was innocent of the charge. Still the Court has consistently ruled in a number of cases that denial is a weak defense which cannot prevail over positive identification.
• Third, circumstances exist to forewarn a reasonable vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstance may include the time and place of the sale, the nature and condition of the goods sold, and the legality of source.
• Finally, fencing is malum prohibitum. Consequently, PD 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object, or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the property.34 In short, 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.35
3. Other things to note
The following are other things to note.
a. Malum prohibitum
[F]encing is malum prohibitum. Consequently, PD 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object, or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the property.34 In short, 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. (Masil v. People, G.R. No. 241837, January 05, 2022, Per Inting, J.)
b. 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. (P.D. 1612, Section 5)
[C]ircumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that “mere possession of any goods,… object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing” — a presumption that is, according to the Court, “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.” (Dela Torre v. COMELEC, En Banc, G.R. No. 121592, July 5, 1996, Per Francisco, J.)
1) Disputable presumption
Such a presumption, however, is a disputable presumption which the accused may overturn as in the following case.
Lopez v. People, G.R. No. 249196, April 28, 2021, Per Zalameda, J.:
• In the instant case, We find that the prosecution has failed to establish beyond reasonable doubt the identity of the bicycle in issue.
• Apart from the police blotter of the alleged robbery, no evidence was presented to prove Mendoza’s ownership of the bicycle in issue. The photos presented did not show any distinctive features to identify the bike. Worse, the evidence at hand did not establish that the bicycle given by petitioner to Magno is the same bicycle stolen from Mendoza.
• Indeed, the features of the bicycle allegedly stolen from Mendoza and the one owned by petitioner are principally different from each other. The color of the fork of the bike owned by private complainant is aluminum or silver, while that of petitioner is blue.
• The composition or the material used for the frame is also different. Mendoza’s is magnesium while petitioner’s is aluminum. Notably, this was established by Mendoza’s testimony.
• The lower courts put much emphasis on the presumption under Section 5 of PD 1612 which states that mere possession of any object which has been the subject of robbery or thievery shall be prima facie evidence of fencing. However, this presumption was overcame by petitioner upon presentation of the notarized affidavits of the President and Chief Mechanic of Bicycle Works that indeed, petitioner bought the bicycle subject of the case from their store.
• Verily, presumptions are “inference[s] as to the existence of a fact not actually known, arising from its usual connection with another which is known, or a conjecture based on past experience as to what course human affairs ordinarily take.” In law, a presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts, and is mandatory unless rebutted.
• The application of disputable presumptions on a given circumstance must be based on the existence of certain facts on which they are meant to operate. Since “[p]resumptions are not allegations, nor do they supply their absence[,]” disputable presumptions apply only in the absence of contrary evidence or explanations. They do not apply when there are no facts or allegations to support them, as in this case.
• Without establishing beyond reasonable doubt that the item which has been the subject of theft is the same object in the possession of petitioner, the presumption under Section 5 of PD 1612 would not operate.
c. Clearance, permit to sell
1) Unlicensed dealer or supplier
For purposes of this Act, 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 in the town or city where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence. (P.D. 1612, Section 6)
d. Sales invoices or receipts
Logically, and for all practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction and may be raised as a defense in the charge of fencing; however, that defense is disputable. (Ong v. People, G.R. No. 190475, April 10, 2013, Per Sereno, J.)
Ong v. People, G.R. No. 190475, April 10, 2013, Per Sereno, J.:
• In this case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious. Ong failed to overcome the evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under Section 5 of P.D. 1612.
• Finally, there was evident intent to gain for himself, considering that during the buy-bust operation, Ong was actually caught selling the stolen tires in his store, Jong Marketing.
• Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the property.
e. Liability of officials of juridical persons
If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable. (P.D. 1612, Section 4)
[A] Fence “includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing.” (Cahulogan v. People, G.R. No. 225695, March 21, 2018, Per Perlas-Bernabe, J.)
f. Penalty
[W]hile the crime of Fencing is defined and penalized by a special penal law, the penalty provided therein is taken from the nomenclature in the Revised Penal Code (RPC). (Cahulogan v. People [208], supra.)
[I]f the special penal law adopts the nomenclature of the penalties under the RPC, the ascertainment of the indeterminate sentence will be based on the rules applied for those crimes punishable under the RPC. (Cahulogan v. People [208], supra.)
References
• P.D. 1612 – Anti-Fencing Law of 1979
• Implementing Rules and Regulations of the Anti-Fencing Law
