G.R. No.

134298 August 26, 1999

RAMON C. TAN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

PARDO, J.:

The case before the Court is an appeal via certiorari from a decision of the Court of
Appeals * affirming that of the Regional Trial Court of Manila, Branch 19, ** convicting petitioner of the
crime of fencing.

Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad
Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for
boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991,
Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the
welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass
screws were missing. She conducted an inventory and discovered that propellers and stocks valued
at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of
Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he
admitted that he and his companion Gaudencio Dayop stole from the complainant's warehouse
some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito
Mendez asked the complainant's forgiveness. He pointed to petitioner Ramon C. Tan as the one who
bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and
they split the amount with one another. Complainant did not file a case against Manuelito Mendez
and Gaudencio Dayop.

On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial
Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential
Decree No. 1612 (Anti-Fencing Law) committed as follows:

That on or about the last week of February 1991, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep,
acquire and possess several spare parts and items for fishing boats all valued at P48,130.00
belonging to Rosita Lim, which he knew or should have known to have been derived from
the proceeds of the crime of theft.

Contrary to law.

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime
charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of
complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.

On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses
and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its
decision, as follows:
ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business
of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B).
That sometime in February 1991, after one of her employees left the company, she
discovered that some of the manufactured spare parts were missing, so that on February 19,
1991, an inventory was conducted and it was found that some welding rods and propellers,
among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person
who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the
Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts
sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same. 1wphi1.nt

When presented on rebuttal, she stated that some of their stocks were bought under the
name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further
that whether the stocks are bought under the name of the said corporation or under the
name of William Tan, her husband, all of these items were actually delivered to the store at
3012-3014 Jose Abad Santos Street and all paid by her husband.

That for about one (1) year, there existed a business relationship between her husband and
Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from
the former brass woods, and that there is no reason whatsoever why she has to frame up
Mr. Tan.

MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from
November 1990 up to February 1991. That sometime in the third week of February 1991,
together with Gaudencio Dayop, his co-employee, they took from the warehouse of Rosita
Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They
delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of
P13,000.00. After taking his share (one-half (1/2) of the amount), he went home directly to
the province. When he received a letter from his uncle, Victor Sy, he decided to return to
Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for
forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a
certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1).

VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the
former being the nephew of his wife while the latter is his auntie. That sometime in February
1991, his auntie called up and informed him about the spare parts stolen from the
warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his
kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez
back to Manila. When Mr. Mendez was brought to Manila, together with Supt. Perlas of the
WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of
his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr.
Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he
pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same.

ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal
Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after
Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an
 inventory and discovered that some of the spare parts worth P48,000.00 were missing.
Some of the missing items were under the name of Asia Pacific and William Tan.

MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he
received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman
of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness
from Rosita Lim. That in connection with this case, he executed an affidavit on April 12,
1991, prepared by a certain Atty. Perlas, a CIS personnel, and the contents thereof were
explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary
Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1).

That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon
Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack
and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr.
Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock and
paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in

selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila.

He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor
met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by
Mrs. Lim are not under her name and the other two (2) are under the name of William Tan,
the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to
the police (Exhibits 1 to 1-g).

He likewise denied having talked to Manuelito Mendez over the phone on the day of the
delivery of the stolen items and could not have accepted the said items personally for
everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It
is not possible for him to be at his office at about 7:00 to 8:00 o'clock in the morning,
because he usually reported to his office at 9:00 o'clock. In connection with this case, he
executed a counter-affidavit (Exhibits 2 and 2-a).1

On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty
beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise known as
Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of
SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify
Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00.

Costs against the accused.

SO ORDERED.

Petitioner appealed to the Court of Appeals.

After due proceedings, on January 29, 1998, the Courts of Appeals rendered decision finding no
error in judgment appealed from, and affirming the same in toto.

In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June
16, 1998, the Court of Appeals denied the motion.

Hence, this petition.

The issue raised is whether or not the prosecution has successfully established the elements of
fencing as against petitioner.2

We resolve the issue in favor of petitioner.

"Fencing, as defined in Section 2 of P.D. No. 1612 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 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."3

"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 things." 4

The crime of theft is committed if the taking is without violence against or intimidation of persons nor
force upon things.5

"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." 6

Before the enactment of P.D. No. 1612 in 1979, the fence could only be prosecuted as an accessory
after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but
the penalty was light as it was two (2) degrees lower than that prescribed for the principal. 7

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, 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.8 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
fencing9 and prescribes a higher penalty based on the value of the property.10

In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of
fencing as follows:

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.11

Consequently, "the prosecution must prove the guilt of the accused by establishing the existence of
all the elements of the crime charged."12

Short of evidence establishing beyond reasonable doubt the existence of the essential elements of
fencing, there can be no conviction for such offense.13 "It is an ancient principle of our penal system
that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs.
Sandiganbayan, 180 SCRA 9)."14

In this case, what was the evidence of the commission of theft independently of fencing?

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.

There was no sufficient proof of the unlawful taking of another's property. True, witness Mendez
admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant
to petitioner. However, an admission or confession acknowledging guilt of an offense may be given
in evidence only against the person admitting or confessing.15 Even on this, if given extra-judicially,
the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible
in evidence against the person so admitting.16 Here, the extra-judicial confession of witness Mendez
was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may
such extra-judicial confession be considered evidence against accused. 17 There must be
corroboration by evidence of corpus delicti to sustain a finding of guilt.18 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."19 The "essential elements of theft are (1) the taking of personal property; (2) the
property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away
was done without the consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)." 20 In
theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2)
that it was lost by felonious taking.21 In this case, the theft was not proved because complainant
Rosita Lim did not complain to the public authorities of the felonious taking of her property. She
sought out her former employee Manuelito Mendez, who confessed that he stole certain articles
from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to
convict, without evidence of corpus delicti.22

What is more, there was no showing at all that the accused knew or should have known that the very
stolen articles were the ones sold him. "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. Knowledge refers to a mental
state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state
with certainty what is contained therein, it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states of cognition or mental awareness, the
court should choose the one which sustains the constitutional presumption of innocence."23

Without petitioner knowing that he acquired stolen articles, he can not be guilty of "fencing". 24

Consequently, the prosecution has failed to establish the essential elements of fencing, and thus
petitioner is entitled to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-
G.R. C.R. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No.
92-108222 of the Regional Trial Court, Manila. 1wphi1.nt

Costs de oficio.

SO ORDERED.

G.R. No. 146584 July 12, 2004

ERNESTO FRANCISCO y SPENOCILLA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:

This is an appeal via a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-
G.R. CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch
22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise
known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1)
day of prision mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum,
as maximum, with the accessory penalties corresponding to the latter, and to pay the corresponding
value of the subject pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993,
the accusatory portion of which reads:

That in or about the month of November 1991, in the municipality of Meycauayan, Province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused
Ernesto Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully,
unlawfully and feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza,
not the owner, several pieces of jewelry, to wit:

One (1) pair of earrings (Heart Shape) --- P 400,000.00

One (1) White Gold Bracelet ---- 150,000.00

One (1) Diamond Ring ---- 100,000.00

One (1) Ring with Diamond ---- 5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows,
or should be known to him, to have been derived from the proceeds of the crime of robbery
or theft.

Contrary to law.3

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial
forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal. 4 She was engaged in
business as a general contractor under the business name J.C. Rodriguez Contractors. Macario
Linghon was one of her workers. She and her husband, the former Municipal Mayor of Rodriguez,
Rizal, acquired several pieces of jewelry which were placed inside a locked cabinet in a locked room
in their main house. Jovita hid the key to the cabinet inside the room. The couple and their son
resided inside a compound. They hired Pacita Linghon, Macarios sister, as one of their household
helpers us sometime in February 1989.5 Pacita swept and cleaned the room periodically. Sometime
in May 1991, she left the employ of the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in
Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan, 6 and asked him to sell some pieces of
jewelry. She told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to
the shop of petitioner Ernesto "Erning" Francisco located at Pacheco Street, Calvario, Meycauayan,
Bulacan,8 which had a poster outside that said, "We buy gold." Macario entered the shop, while
Pacita stayed outside. Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed
to buy the jewelry for P25,000, and paid the amount to Macario. He also gave Macario P300 as a
tip.9

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings. He agreed. He
and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings
for P18,000. The latter agreed and paid Macario the amount. Ernesto gave a P200 tip to Macario.
After these transactions, Macario saw the petitioner in his shop for about five to six more times and
received some amounts.11

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was
shocked when she opened the locked cabinet containing her jewelry, and found that the box was
empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing
were one pair of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring
worth P100,000; one white gold bracelet with diamond stones worth P150,000; and one ring with a
small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was,
however, occupied with her business ventures that she had little time to gather evidence and charge
Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion
Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp Crame,
Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings
with diamond worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1)
white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond
stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and
her mother Adoracion disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group,
invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with
Jovitas complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement
pointing to the petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992,
Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped
earrings with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring "with
big and small stones" to "Mang Erning" of Meycauayan, Bulacan, for the total price of P50,000 to
cover the cost of her fathers operation and for food. When asked about the full name of the person
to whom the jewelry was sold, Pacita replied that she knew him only as "Mang Erning."

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1
Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the "Mang
Erning" who had purchased the jewelry from her. The policemen alighted from their vehicle and
invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was brought
to the police station of Meycauayan, Bulacan. When they were at the police station, the petitioner, in
the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not
to implicate him in the case. PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to
go with them to Camp Crame, but the petitioner refused and demanded that the policemen first
secure a warrant for his arrest should they insist on taking him with them. 13

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal,
Branch 76.14 The case was docketed as Criminal Case No. 2005. Adoracion was also charged with
violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were
consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him
that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the
petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of
Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal
complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of
Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary
investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to
the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the
jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the
jewelry home.16 The court found probable cause against the petitioner, and issued a warrant for his
arrest.

On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the
petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal,
Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty
of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision
reads:

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as

follows:

1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond
reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to
Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence
of Nine (9) years and Four (4) months of prision mayor as minimum to Eighteen (18) years,
Two (2) months and Twenty (20) days of reclusion temporal as maximum, to return to
complainant Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of this case
and if restitution is not possible, to indemnify the said complainant in the amount
ofP1,300,000.00; and to pay the costs.

2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond
reasonable doubt of the offense of violation of PD 1612, otherwise known as the Anti-
Fencing Law, and sentencing her to suffer imprisonment of Twelve (12) years of prision
 mayor; to indemnify complainant Jovita Rodriguez in the amount of P45,000.00; and to pay
the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop
located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He
had been in this business since 1980.18 He did not transact with Pacita regarding Jovitas missing
jewels.19 In fact, he did not even know Jovita and met her only during the preliminary investigation of
the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon,
and claimed that he first saw her when she accompanied some policemen in civilian clothes to his
shop, where he was thereafter invited to Camp Crame for investigation. 20 He saw Pacita again only
during the preliminary investigation of the case. 21 The petitioner also averred that he had no
transaction with Macario of whatever nature.22

The petitioner further testified that when the policemen in civilian clothes approached him in his
shop, they asked who "Mang Erning" was, as the sign in his shop carried such name. When he
responded to the question, the policemen identified themselves as members of the police force. The
petitioner then gave them his full name.23When the policemen invited him for questioning, he refused
at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen insisted
on bringing him to Camp Crame. He told them that he would go with them only if they had a warrant
of arrest.24 He denied ever offering any bribe to the policemen.25

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable
doubt of violating P.D. No. 1612. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree
No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1
day of prision mayormaximum, as minimum, to 20 years of reclusion temporal maximum, as
maximum, with the accessory penalties corresponding to the latter.

2. Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding
value of the subject items of jewelries (sic):

one (1) pair of earrings, heart P400,000.00

shaped

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

 one (1) ring with diamond 5,000.00

TOTAL VALUE P655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until
said amounts have been fully paid.

SO ORDERED.26

The petitioner appealed the decision to the Court of Appeals contending that:

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF

PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE
WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND
REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY

(sic) OF PROSECUTION WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION

WITNESS AS TO THE ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT
SHOW OF MONEY.

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC. 28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:

 The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty
beyond reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise
known as the Anti-Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses,
all of which consisted of hearsay evidence.29

The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond
reasonable doubt. He avers that the prosecution failed to prove that Pacita stole the jewelry subject
of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the
prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and
sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that
the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for theft,
are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to
him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that
the testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial
matters; hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able
to prove all the elements of the crime charged. It asserts that the first element was proved through
Pacitas conviction for theft in Criminal Case No. 2005; the second element was shown to exist with
moral certainty via the testimony of Macario identifying the petitioner as the one who bought the
subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element
was proven by evidence showing that the petitioner had been in the business of buying and selling
jewelry for a long period of time, and that he had the expertise to know the correct market price of
the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must have
been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for
only P50,000.30 It contends that the inconsistencies in the testimonies of the prosecution witnesses
referred to by the petitioner were minor, and could not be made as a basis to disregard the trial
courts findings of facts, which are entitled to great respect and credit. 31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (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 crime of robbery or theft; (3) the accused knew or should
have shown 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.32 Fencing is malum prohibitum, and P.D. No. 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.33 The stolen property subject of the charge is not indispensable
to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the
prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of
evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the
locked cabinet in the main house of her then employer. Jovita testified on her ownership of the
jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the
pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal
Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that
Pacita had, indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case
No. 2005 was already final and executory when the trial court rendered its decision in the instant
case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved
the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal
Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to
the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the
complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision
in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the
preliminary investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown
by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn
statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario
before the trial court.

However, we find and so hold that

First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her
that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter
to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the
said criminal cases. The well-entrenched rule is that only parties to a case are bound by a judgment
of the trial court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not
reiterate her testimony in the said criminal cases during the trial in the court a quo. The prosecution
did not present Pacita as witness therein to testify on the admission she purportedly made to Jovita;
hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations
of a person are not admissible in evidence against a third party.35

Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841,
as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did
not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront
and cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner,
while the latter was having a drinking spree, as the person who bought the subject jewelry from her,
is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony
of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to
the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth
of Pacitas declaration to the policemen, that the petitioner was the one who purchased the jewelry
from her. It must be stressed that the policemen had no personal knowledge of the said sale, and,
more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his
right to cross-examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal
Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the
prosecution and was cross-examined on his testimony during the preliminary investigation.
In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from
Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the
testimony of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to
anchor a judgment of conviction, it is required that such testimony must be credible and reliable. 36 In
this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary
investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent.
He even admitted that some portions of his testimony on direct examination in the court a quo were
inconsistent with his testimony on cross-examination and on re-direct examination. These
admissions are buttressed by the records of the case, which show that such inconsistencies
pertained to material points and not merely to minor matters. Thus, during the preliminary
investigation in Criminal Case No. 92-13841, Macario admitted that on October 10, 1991, he and his
sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while in November 1991,
he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct examination in the court
a quo, Macario testified that he and Pacita sold the earrings to the petitioner in May 1992, not in
November 1991, and only for P18,000. On cross-examination, Macario testified that he and his sister
Pacita went to the petitioners shop in Meycauayan, Bulacan and sold the subject jewelry on both
occasions. On further cross-examination, Macario changed his testimony anew, and declared that he
sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again,
and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary
investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the
second time, he was with a friend, and not with his sister Pacita. On redirect examination, Macario
declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one
bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified that
he and his sister sold the earrings in November 1991. Because of the contradicting accounts made
by Macario, the court made the following observations:

Court

q According to you, you were "nalilito" but you gave the correct answer, you are not "nalilito"
here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang
sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama
iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo.

a Because I am scare[d] here thats why I gave the wrong answer.

q You better think about it.

a I was confused, Sir.37

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner
received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no
evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not
know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the
jewelry to the petitioner that they belonged to a friend of hers.
 Atty. Lerio

Q At that time you and your sister sold those jewels to "Mang Erning" did do you know
already [that] it was Mrs. Rodriguez who is the owner of those jewels?

A No, Sir, I do not know.

Q And who do you know was the owner of that jewels and that time you and your sister sold
those jewels to "Mang Erning"?

A According to my sister, it is (sic) owned by a friend of hers.

Court

Q How did you come to know of this "Mang Erning?"

A Only at that time when we brought the jewels.

Q But previous to that, do you know him?

A No.38

Macario learned, after the case against Pacita had already been filed in the trial court, that the
jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said
jewelry was stolen. Following is the testimony of Macario:

Atty. Lerio

Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all,
informed (sic) "Mang Erning" about it?

Court

Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?

A In 1992, when my sister already had a case.

Q What did you do when you come (sic) to know about that?

A I was not able to do anything but just to help my sister with her case and also to help the
case of Mrs. Rodriguez.

Atty. Lerio

Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there
any occasion where you (sic) able to inform "Mang Erning" that those jewels were owned by
Mrs. Rodriguez?

A No more, I have no more time.39

The prosecution cannot even validly argue that the petitioner should have known which pieces of
jewelry were stolen, considering that Macario was selling the same for P50,000 when the said
pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution
failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The
prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were
worth P655,000:

Atty. Lerio

Q Now, will you tell this Court some of those jewels which you own?

A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-
shapedP400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white
gold full of stones, diamond worth P150,000.00; 1-diamond ring with small stones
worth P5,000.00. So, all in all, the jewelry is (sic) worth P665,000.00.40

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely
declared:

Atty. Lerio

Q Now again, when did you acquire those jewels if you can still remember?

A I remember several years ago when my husband is (sic) alive.

Court

Q Please tell the court, [is] the market value of the jewels the same today?

A No, that is (sic) the market value several years ago.

Q So, can you explain [if] the market value, more or less, [is] the same today?

A No. The price, if we will appraise now, is much bigger.41

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the
price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no
such receipts. Thus:

Court

Q You bought it from [a] private person?

A Yes, Your Honor.

Atty. Bernal

Q What then is your proof that you bought these jewelries (sic) from a private person?

Atty. Lerio
 That was already answered, Your Honor. She said, no receipt.42

In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an ordinary witness cannot
establish the value of jewelry, nor may the courts take judicial notice of the value of the same:

[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness
cannot establish the value of jewelry and the trial court can only take judicial notice of the
value of goods which are matters of public knowledge or are capable of unquestionable
demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of
unquestionable demonstration and in the absence of receipts or any other competent
evidence besides the self-serving valuation made by the prosecution, we cannot award the
reparation for the stolen jewelry.45

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the
jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can
be concluded that the accused should have known that the property sold to him were stolen. This
requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing;
and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty
depends on the value of the property; otherwise, the court will fix the value of the property at P5.00,
conformably to our ruling in People v. Dator:46

In the absence of a conclusive or definite proof relative to their value, this Court fixed the
value of the bag and its contents at P100.00 based on the attendant circumstances of the
case. More pertinently, in the case of People vs. Reyes, this Court held that if there is no
available evidence to prove the value of the stolen property or that the prosecution failed to
prove it, the corresponding penalty to be imposed on the accused-appellant should be the
minimum penalty corresponding to theft involving the value of P5.00.47

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos,
Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
violating P.D. No. 1612 for the prosecutions failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

G.R. No. 190475 April 10, 2013

JAIME ONG y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ.:

Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals (CA),
which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC), Branch 37,
Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of violation of
Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Law.
Ong was charged in an Information3 dated 25 May 1995 as follows:

That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent
of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive and
acquire from unknown person involving thirteen (13) truck tires worth P65, 975.00, belonging to
FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have
been derived from the crime of robbery.

CONTRARY TO LAW.

Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found
him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision
reads:

WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt
of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree No.
1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of imprisonment
of 10 years and 1 day to 16 years with accessory penalty of temporary disqualification.

SO ORDERED.4

Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTCs
finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009.

Ong then filed the instant appeal before this Court.

The Facts

The version of the prosecution, which was supported by the CA, is as follows:

Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100 by
20 by 14. He acquired the same for the total amount of P223,401.81 from Philtread Tire and Rubber
Corporation, a domestic corporation engaged in the manufacturing and marketing of Firestone tires.
Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated November 10,
1994 and an Inventory List acknowledging receipt of the tires specifically described by their serial
numbers. Private complainant marked the tires using a piece of chalk before storing them inside the
warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio Valley 1, Sucat,
Paraaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of the warehouse,
was in charge of the tires. After appellant sold six (6) tires sometime in January 1995, thirty-eight
(38) tires remained inside the warehouse.

On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight
(38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private
complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at
Fort Bonifacio.
Pending the police investigation, private complainant canvassed from numerous business
establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant
chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by
appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14 ply
Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting the
description, which private complainant recognized as one of the tires stolen from his warehouse,
based on the chalk marking and the serial number thereon. Private complainant asked appellant if
he had any more of such tires in stock, which was again answered in the affirmative. Private
complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the
Southern Police District.

On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation
on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3
Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito
Atienza was appointed as the poseur-buyer.

On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police
District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in
the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted
themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14
Firestone truck tires available. The latter immediately produced one tire from his display, which
Atienza bought for P5,000.00. Atienza asked appellant if he had any more in stock.

Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which
was located beside his store. After the twelve (12) truck tires were brought in, private complainant
entered the store, inspected them and found that they were the same tires which were stolen from
him, based on their serial numbers. Private complainant then gave the prearranged signal to the
buy-bust team confirming that the tires in appellant's shop were the same tires stolen from the
warehouse.

After seeing private complainant give the pre-arranged signal, the buy-bust team went inside
appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck
tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires, was brought to the police
station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen (13)
tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed by
private complainant as stolen from his warehouse. 5

For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the
business of buying and selling tires for twenty-four (24) years and denying that he had any
knowledge that he was selling stolen tires in Jong Marketing. He further averred that on 18 February
1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from
Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the tires for P45,500, for which he
was issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6
Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The
poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes
later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those
items were stolen tires.7

The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in
the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the
presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D.
1612.8

On appeal, the CA affirmed the RTCs findings with modification by reducing the minimum penalty
from ten (10) years and one (1) day to six (6) years of prision correcional. 9

OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as 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 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 essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a principal or on 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 crime of robbery or theft; (3) 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; and (4) there is, on the part of one accused, intent to gain
for oneself or for another.10

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. 4565 11 dated 10 November 1994 and
an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as
evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort
Bonifacio.14 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 Ongs possession. 15 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. 980.16

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.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24)
years,18 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.19 The entire transaction, from the proposal to buy until the delivery of
tires happened in just one day.20 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.

In Dela Torre v. COMELEC,21 this Court had enunciated that:

Circumstances 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." xxx.22

Moreover, Ong knew the requirement of the law in selling second hand tires. Section 6 of P.D. 1612
1wphi1

requires stores, establishments or entities dealing in the buying and selling of any good, article, item,
object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station commander of the Integrated National Police in the
town or city where that store, establishment or entity is located before offering the item for sale to the
public. In fact, Ong has practiced the procedure of obtaining clearances from the police station for
some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a
diligent businessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go. Logically, and for all
1wphi1

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. 23 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.24 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 25 property.

The RTC and the CA correctly computed the imposable penalty based on P5,075 for each tire
recovered, or in the total amount of P65,975. Records show that Azajar had purchased forty-four
(44) tires from Philtread in the total amount of P223,40 1.81.26 Section 3 (p) of Rule 131 of the
Revised Rules of Court provides a disputable presumption that private transactions have been fair
and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned
in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil
tread.

In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find
sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation
of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision
correccional.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the
assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.

SO ORDERED.