PRESIDENTIAL DECREE No.

1612 in the anti-fencing law since it is basically robbery in waters)

Anti-Fencing Law _“theft” includes all kinds of theft (qualified theft, theft in other
Fencing defined. SPLs*)
It is the act of any person who, with intent to gain for himself or
for another, shall buy, receive, possess, keep, acquire, conceal, *other kinds of theft were transferred to SPLs since it would be
sell or dispose of, or shall buy and sell, or in any other manner easier to prove since they are now mala prohibita
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. Station Commander has authority to issue the required
Presumption of Fencing clearance/permit/certificate of authority
Mere possession of any goods, article, item, object, or anything o Permit is without cost
of value which has been the subject of robbery or thievery shall _How can we be protected if we want to buy second hand
be prima facie evidence of fencing. goods?
Elements of Fencing. o Ask for the receipt evidencing that the seller bought the article
The essential elements of the crime of fencing are as follows: he is selling; if you buy it, get the receipt
(1) a crime of robbery or theft has been committed; (2) the o If no receipt?
accused, who is not a principal or accomplice in the commission _Pawnshops will ask you to execute an affidavit of ownership;
of the crime of robbery or theft, buys, receives, possesses, you will have a copy, they have a copy
keeps, acquires, conceals, sells or disposes, or buys and sells, _Even if no formal affidavit, can state in a piece of paper that
or in any manner deals in any article, item, object or anything of the person is the owner, this is sufficient
value, which has been derived from the proceeds of the crime of _There are “large-scale” violations of anti-fencing law
robbery or theft; (3) the accused knew or should have shown
_Crime of estafa is not included in anti-fencing law
that the said article, item, object or anything of value has been
o Civil action against those who sell things which are the product
derived from the proceeds of the crime of robbery or theft; and,
of estafa (?)
(4) there is, on the part of the accused, intent to gain for himself
or for another.
P.D. 1612 (Anti-Fencing Law)
Fencing is malum prohibitum, and P.D. No. 1612 creates a
prima facie presumption of fencing from evidence of possession
Fencing - It is the act of any person who, with intent to gain for
by the accused of any good, article, item, object or anything of
himself or for another, shall buy, receive, possess, keep,
value which has been the subject of robbery or theft, and
acquire, conceal, sell or dispose of, or shall buy and sell, or in
prescribes a higher penalty based on the value of the property.
any other manner deal in any article, item, object or anything of
The stolen property subject of the charge is not indispensable to
value which he knows, or should be known to him, to have been
prove fencing. It is merely corroborative of the testimonies and
derived from the proceeds of the crime of robbery or theft.
other evidence adduced by the prosecution to prove the crime
of fencing.
Fence - includes any person, firm, association, corporation or
Under what law should the accessory in theft or robbery be
partnership or other organization who/which commits the act of
prosecuted?
fencing.
The accessory in the crimes of robbery and theft could be
prosecuted as such under the Revised Penal Code or under
Elements of Fencing:
P.D. No. 1612. However, in the latter case, the accused ceases
a. Robbery or theft has been committed; thing lost was
to be a mere accessory but becomes a principal in the crime of
not returned
fencing. Otherwise stated, the crimes of robbery and theft, on
b. The accused, not a principal or accomplice of crimes
the one hand, and fencing, on the other, are separate and
above, buys, receives, possesses, keeps, acquires,
distinct offenses. The State may thus choose to prosecute him
conceals, sells or disposes or buys and sells, or in any
either under the Revised Penal Code or P.D. No. 1612, although
manner deals in any article, item, object or anything of
the preference for the latter would seem inevitable considering
value, which has been derived from the proceeds of the
that fencing is malum prohibitum, and P.D. No. 1612 creates a
crime
presumption of fencing and prescribes a higher penalty based
c. The accused knows or should have known that the
on the value of the property. (Tan vs. People, 313 SCRA 220
article are proceeds of the crime
(1999)
d. There is, on the part of the accused the intent to gain
Clearance/Permit to Sell/Used Second Hand Articles.
for himself or for another
All stores, establishments or entities dealing in the buy and sell
of any good, article item, object of anything of value obtained
Penalties:
from an unlicensed dealer or supplier thereof, shall before
a. Prision Mayor – property is Php 12,001-Php 20,000; if
offering the same for sale to the public, secure the necessary
exceeds – maximum period, adding one year for each
clearance or permit from the station commander of the
additional 10,000 pesos; not exceed 20 years, termed
Philippine National Police in the town or city where such store,
as reclusion temporal
establishment or entity is located. Any person who fails to secure
b. Prision Correcional Medium and Maximum – property
the required clearance or permit or who violates any of the
is Php 6,001-Php 12,000
provisions of the rules and regulations promulgated thereunder
c. Prision Correcional Minimum – property is Php 201-
shall upon conviction be punished as a fence.
Php 6,000
d. Arresto Mayor Medium to Prision Correcional Minimum
– property is Php 51-Php 200
ANTI-FENCING LAW
e. Arresto Mayor Medium – Php 6- Php 50
(PD 1612)
f. Arresto Mayor Medium – does not exceed Php 5
_Passed during martial law; at the time there was a
proliferation of sale of things obtained from robbery or theft
Liability of Officials of Juridical Persons - If the fence is a
_“robbery” in Anti-fencing law covers all kinds of robbery partnership, firm, corporation or association, the president or the
(including brigandage, highway robbery, even piracy is included
manager or any officer thereof who knows or should have known
the commission of the offense shall be liable.
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.
Rules in Selling 2nd Hand Articles:
1. Obtain license from the city or municipal government
2. Keep an inventory of goods and articles bought and
sold
3. Duty of station manager to ensure proper inventory
4. Duty to require owner to show proof of acquisition
5. To prevent harassment, require proof of ownership
from the seller or affidavit of ownership duly notarized
Intent to gain need not be proven – Since fencing is a special
law which is mala prohibita, criminal intent need not be proven.
A fence may be prosecuted under the RPC or Anti-Fencing Act
– The State may thus choose to prosecute him either under the
RPC or PD 1612, considering fencing is a malum prohibitum.
Distinction between Fencing and Robbery
Robbery- 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 - It 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.
Fencing is an act of moral turpitude – Moral turpitude can be
derived from the 3rd element of fencing (knowledge)
FENCING
• 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 robbery or theft
• The fence should otherwise be an accessory had not the
offense filed against him was fencing
ELEMENTS OF FENCING
1. Robbery or theft has been committed
2. The accused, who is not the principal or accomplice in this
crime, 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 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
4. There is, on the part of the accused the intent to gain for
himself or for another
PENALTY FOR FENCING
• The same with the crime of theft
RULES IN DEALING WITH ESTABLISHMENTS SELLING
SECONDHAND
ARTICLES
1. Obtain license from the city or municipal government
2. Keep an inventory of goods and articles bought and sold
3. Duty of station manager to ensure proper inventory
4. Duty to require owner to show proof of acquisition
5. To prevent harassment, require proof of ownership from the
seller. Otherwise, ask for an affidavit of ownership duly
notarized
ROBBERY OR THEFT NEED NOT BE PROVEN
• As long as you show person doesn’t own the property and
there is evidence to show there was robbery
• Even if its lost property, the owner should be appraised of such
CRIMINAL INTENT NOT REQUIRED
1. Only the intent to gain
PRIMA FACIE PRESUMPTION
2. 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. (Section 5)
FENCING, DEFINED: The act of any person who, with intent to
gain for himself or for another:
- shall buy receive, possess, keep, acquire, conceal, sell,
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
Sec. 2 of PD No. 1612
Note: Crime of estafa is not included. It is limited to robbery and
theft.
FENCE, DEFINED: Includes any person, firm, association,
corporation or partnership or other organization who/which
commits the act of fencing.
PD NO. 1612 (ANTI-FENCING LAW OF 1979)
- Enacted under President Ferdinand Marcos
- Took effect: March 2, 1979
- IRR formulated and it took effect: June 15, 1979.
PURPOSE OF THE ANTI-FENCING LAW
- To curtail and put an end to the rampant robbery of government
and private properties. With the existence of "ready buyers", the
"business" of robbing and stealing has become profitable.
- To also punish those who buy stolen properties. For if there are
no buyers then the malefactors could not profit from their wrong
doings.
.
PERSONS LIABLE AND THEIR CORRESPONDING
PENALTIES
- Person liable:
o One buying, keeping, concealing and selling the stolen items.
26
o If the fence is a corporation, partnership, association or firm:
_the president or the manager or the officer who knows or
should have known the fact that the offense was committed.
Penalty: Depends on the value of the goods/items stolen or
bought:
Value of the Property PENALTY
E 22k prision mayor maximum
(adding 1 yr for each
additional 10k)
PROV. Total penalty
shall NE 20yrs
*If 20 yrs = reclusion
temporal
E 12k but NE 22k prision mayor
E 6k but NE 12k prision correccional med
 and max periods
E 200 but NE 6k prision correccional min
and med periods,
E 50 but NE 200 arresto mayor med to
prision correccional min
E 5 but NE 50 arresto mayor med
NE 5 arresto mayor min
RULES REGARDING BUY AND SELL OF GOODS
PARTICULARLY SECOND HAND GOODS
- The establishment engaged in the buy and sell of goods is
required to obtain a clearance or permit to sell "used second
hand items",
- Failure of which makes the owner or manager liable as a fence.
DEFINITION OF TERMS (IRR)
"Used secondhand article (USA)": Any goods, article, items,
object or anything of value obtained from an unlicensed dealer
or supplier, regardless of whether the same has actually or in
fact been used. 27
"Unlicensed dealer/supplier": Any persons, partnership, firm,
corporation, association or any other entity or establishment not
licensed by the gov’t to engage in the business of dealing in or
of supplying of USA
"Store", "establishment" or "entity": Includes also any
individual dealing in the buying and selling of used secondhand
articles
"Buy and Sell": Transaction whereby one purchases USAs for
the purpose of resale to third persons;
"Station Commander": The Station Commander of the
Integrated National Police w/in the territorial limits of the town or
city district where the store, establishment or entity dealing in the
buying and selling of used secondhand articles is located.
PROCEDURE FOR SECURING PERMIT/CLEARANCE
- IRR provides for the method of obtaining clearance or permit.
- No fee will be charged for its issuance.
- Failure to secure clearance/permit shall be punished as a
fence, that may result to the cancellation of business license.
DUTIES AND RESPONSIBILITIES OF THE STATION
MANAGER AND OWNER OF SECONDHAND STORES
- The Station Commander shall require the owner of a store or
the President, manager or responsible officer having in stock,
USAs:
o to submit an initial affidavit
_w/in 30 days from receipt of notice and
o subsequent affidavits:
_once every 15 days w/in 5 days after the period covered
- which shall contain:
o Complete inventory of such articles including the names and
addresses from whom the articles were acquired.
o Full list of articles to be sold or offered for sale including the
time and place of sale
o Place where the articles are presently deposited.
WHAT MAY BE REQUIRED BY THE STATION COMMANDER
OR OWNER OF SECONDHAND STORES OR DEALERS
The Station Commander (St-Co) may, require the submission of
an affidavit accompanied by other documents showing proof of
legitimacy of acquisition.
1. Those who wish to secure the permit/clearance, shall file an
application with the St-Co concerned, which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the name
and address of the unlicensed dealer or supplier from whom
such article was acquired.
c. He must also include the receipt or document showing proof
of legitimacy of acquisition.
2. The St-Co:
- shall examine the documents attached to the application and
- may require the presentation of other additional documents, if
necessary, to show satisfactory proof of the legitimacy of
acquisition of the article, subject to the following conditions:
- If the St- Co is not satisfied with the proof of legitimacy of
acquisition:
o he shall cause the publication of the notice,
o at the expense of the one seeking clearance/permit, in a
newspaper of general circulation for 2 consecutive days, stating:
_Articles acquired from unlicensed dealer or supplier
_The names and addresses of the persons from whom they
were acquired
_That such articles are to be sold or offered for sale to the
public at the address of the store seeking the clearance/permit.
3. If there are no newspapers in general circulation, the party:
- shall post a notice daily for 1 week on the bulletin board of the
municipal building of the town where the store is located or,
- in the case of an individual, where the articles in his possession
are to be sold or offered for sale.
4. If after 15 days, upon expiration of the period of publication or
of the notice, no claim is made to any of the articles:
- the St-Co shall issue the clearance or permit sought.
5. If before expiration of the same period for the publication of
the notice or its posting, it shall appear that any of the articles in
question is stolen:
- the St-Co shall hold the article in restraint as evidence in any
appropriate case to be filed.
- Articles held in restraint shall be kept and disposed of as the
circumstances of each case permit.
- It shall be the duty of the St-Co concerned to advise/notify the
Commission on Audit of the case and comply with such
procedure.
6. The St-Co shall, w/in 72 hours from receipt of the application:
- act thereon by either issuing the clearance/permit requested or
denying the same.
- Denial of an application shall be in writing and shall state the
reason/s thereof.
7. Any party not satisfied with the decision of the St-Co may
appeal:
- w/in 10 days to the PNP District Superintendent and PNP
Director.
The decision of the Director can still be appealed to the Director-
General:
- w/in 10 days, whose decision may be appealed
- with the Secretary of National Defense, w/in 15 days, which
decision is final.
PRIMA FACIE EVIDENCE OF FENCING:
- Mere possession of any good, article, item, object or anything
of value which has been the subject of robbery or thievery
- The accused is presumed to have knowledge of the fact that
the items found in her possession were the proceeds of robbery
or theft
ELEMENTS OF VIOLATION OF THE ANTI-FENCING LAW:
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, possess, 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, or 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. (See page 10 where this element need not be
proven)
DISCUSSION OF THE ELEMENTS
First Element:
- The crime of robbery or theft should have been committed
before crime of fencing can be committed.
- The person committing the crime of robbery or theft, is not the
same person committing the crime of fencing.
DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO
MATERIAL IN ANTI-FENCING UNDER PD 1612
- Dolo or deceit is immaterial in crimes punishable by special
statute.
- It is the act itself which constitutes the offense and not the
motive or intent.
- Intent to gain is a mental state, the existence of which is
demonstrated by the overt acts of the person.
- The mental state is presumed from the commission of an
unlawful act.
A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD
1612 OR BOTH
- The state may choose to prosecute him either under the RPC
or PD NO. 1612
- PD No. 1612 creates a presumption of fencing and prescribes
a higher penalty based on the value of the property.

Second Element: FENCING ROBBERY

- This element speaks of the overt act of keeping, buying, See Definition in Page It is the taking of personal
receiving, possessing, acquiring, concealing, selling or property belonging to another,
disposing or in any manner deals with stolen items. with intent to gain, by means
- Ex. Lim vs. Court of Appeals: The accused stored and kept in of violence against or
his bodega and subsequently disposed of the 9 pcs. of stolen intimidation of any person, or
tires with rims using force upon anything

Third Element:
- The accused knew or should have known that the goods were Fencing does not require the Neither is the crime of robbery
stolen accused to have participation or theft made to depend on an
- The fact that a person was willing to part with a considerable in the criminal design in the act of fencing in order that it
number of jewelry at measly sum, should have apprised the commission of the crime of can be consummated
accused of the possibility that they were stolen goods. robbery or theft
- Also, the fact that the offender is engaged in the business of
buying and selling gold and silver, which business is very well
exposed to the practice of fencing should require more caution FENCING AS A CRIME INVOLVING MORAL TURPITUDE
in dealing with customers than an ordinary case - Actual knowledge by the "fence" of the fact that property
received is stolen displays the same degree of malicious
WHEN POSSESSION UNDER CERTAIN CIRCUMSTANCES deprivation of one's rightful property which by their very nature
CAN BE AN ACT OF FENCING are crimes of moral turpitude.
- Stolen articles when found displayed in petitioner's shelves - Moral turpitude can be derived from the third element - accused
inside his compound is an act of fencing. knows or should have known that the items were stolen.
- The crime negates the principle of each person's duty to his
WHEN THE 3RD ELEMENT NOT PROVEN fellowmen not to appropriate things that they do not own or
return something acquired by mistake or with malice.

- When there is no proof that the accused bought or sold articles ESSENCE OF VIOLATION OF THE ANTI-FENCING LAW: The
knowing the same to be stolen – the 3rd element is lacking law requires that the offender buys or otherwise acquires and
- There is no proof that the accused had knowledge that the then sells or disposes of any object of value which he knows or
product was stolen when he purchased the stereo from a known should be known to him to have been derived from the proceeds
merchant and the unit is displayed for sale in their store. of the crime of robbery or theft.
- When the accused can present sales receipts covering the PROOF OF PURCHASE WHEN GOODS ARE IN
purchase of items from a known hardware store, it means that POSSESSION OF THE OFFENDER IS NOT NECESSARY IN
there was no reason for them to suspect that the items were ANTI-FENCING
stolen - Mere possession thereof is enough to give rise to a
presumption of fencing.
- These actions are not indicative of a conduct of a guilty person.
INTENT TO GAIN NEED NOT BE PROVEN UNDER THE - This presumption must be overthrown by sufficient and
ANTI-FENCING LAW (PD 1612): (When the prosecution convincing evidence.
chooses to prosecuted under a special law instead of
prosecuting under the RPC)
- The last element need not be proven.
- Intent to gain need not be proven in crimes punishable by a
special law such as the Anti-Fencing Law.
- These crimes are called "acts mala prohibita".
- The only inquiry is whether the law has been violated
- When the act is prohibited by a special law, intent is immaterial.