Anti-Fencing Law (P.D.

1612)

Fencing Definition

Fencing, as defined in Section 2(a) of Presidential Decree No. 1612 (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.”

The crime of fencing can be committed by an individual or a juridical person, as Section 2(b) of the same
law defines a “fence” as “including any person, firm, association corporation or partnership or other
organization who/which commits the act of fencing.”

Elements of Fencing

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.

[Note: In Dunlao, Sr. vs. Court of Appeals, G.R. No. 111343, August 22, 1996, the court ruled that
intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612. Dolo is not
required in crimes punished by a special statute like the Anti-Fencing Law because it is the act alone,
irrespective of the motives, which constitutes the offense.

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[Francisco vs People, G.R. No. 146584, July 12, 2004 citing Capili v. Court of Appeals, G.R. No.
139250, August 15, 2000; Tan v. People, G.R. No. 134298, August 26, 1999, Dizon-Pamintuan v.
People, G.R. No. 111426, July 11, 1994]

Malum Prohibitum

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.
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.
[Francisco vs People, G.R. No. 146584, July 12, 2004; Mel Dimat v. People, G.R. No. 181184,
January 25, 2012; Jaime Ong v. People, G.R. No. 190475, April 10, 2013]

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 [Tan v. People,
G.R. No. 134298, August 26, 1999]

Knowledge that goods were stolen

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

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.
[Tan v. People, G.R. No. 134298, August 26, 1999](emphasis and underscoring supplied)

Accessory to Crime of Robbery or Theft

Before the enactment of P. D. No. 1612 in 1979, the fence could only be prosecuted as an accessory
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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.

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. 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. [Tan v. People, G.R. No. 134298, August 26, 1999
citing Dizon-Pamintuan v. People, G.R. No. 111426, July 11, 1994]

Police Visitorial Power

It shall be the duty of the owner of the store or of the president, manager or responsible officer-in-charge
of any firm, establishment or other entity or of an individual having in his premises articles to be sold or
offered for sale to the public to allow the Station Commander or his authorized representative to exercise
visitorial powers. For this purpose, however, the power to conduct visitations shall be exercise only
during office or business hours and upon authority in writing from and by the INP Superintendent in the
district and for the sole purpose of determining whether articles are kept in possession or stock contrary
to the intents of Section 6 of P.D. No. 1612 and of these rules and regulations. (Part VI, Rules and
Regulations to Carry Out the Provisions of Section 6 of P.D. 1612 (Anti-Fencing Law)
(underscoring supplied)

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