Arlene is engaged in the buy and sell of used garments, more popularly known as “ukay-ukay.” Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers.
Arlene was charged with “fencing.” Will the charge prosper? Why or why not? (5%)
Suggested answer only. Not an official answer and not legal advice.
No, the charge of fencing will not prosper against Arlene.
Under Section 2 of Presidential Decree 1612 or the Anti-Fencing Law, fencing requires that a crime of robbery or theft has been committed, and the accused deals in an item derived from such proceeds knowing or having reason to know it was stolen.
Here, the prosecution failed to show that the brand-new blazers were stolen or derived from robbery or theft. Possession of movable property carries a presumption of ownership, and the presumption of fencing under Section 5 arises only after proof that the item was subject to robbery or theft.
Consequently, without proof of an underlying robbery or theft, the charge of fencing against Arlene cannot prosper.
This is not an official scoring system and carries no weight with the Supreme Court or any bar review provider. It measures how much of the suggested answer's wording your response covers, not whether your reasoning is correct. For practice only.
Quick check
What is an indispensable element that the prosecution must prove to convict an accused of fencing under PD 1612?
Proof that an underlying crime of robbery or theft was committed is an essential element of fencing under PD 1612.
When does the statutory presumption of fencing under Section 5 of PD 1612 apply?
The presumption of fencing arises only after the prosecution proves that the property was stolen in a robbery or theft.
What is the legal effect if the prosecution fails to establish that property seized from an accused was stolen?
Without proof of an underlying robbery or theft, a charge of fencing cannot prosper.
Under PD 1612, what is the nature of the offender's knowledge required for the crime of fencing?
Fencing requires that the offender knows or should have known that the property was derived from robbery or theft.
Why does mere possession of brand-new luxury items in an ukay-ukay store NOT automatically constitute fencing?
Mere possession does not constitute fencing without evidence that the items were subject to an antecedent theft or robbery.
Learn more about these topics
1. Elements of Fencing
Under Section 2 of Presidential Decree No. 1612, known as the Anti-Fencing Law, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. Proof of an underlying robbery or theft is indispensable.
2. Presumption of Fencing
Section 5 of Presidential Decree No. 1612 establishes a prima facie presumption of fencing from the mere possession of any article, item, object or anything of value which has been the subject of robbery or theft. However, this statutory presumption does not apply automatically upon mere possession. The prosecution must first establish beyond reasonable doubt that a crime of robbery or theft was actually committed and that the stolen property was subsequently found in the possession of the accused.
3. Proof of Theft
To sustain a conviction for fencing under Presidential Decree No. 1612, the prosecution bears the burden of proving that the property found in the possession of the accused was the product of a robbery or theft. In the absence of evidence establishing the commission of an antecedent robbery or theft, the statutory presumption of fencing does not arise. Mere possession of goods, even if unusual for the possessor's business, does not shift the burden to the accused to prove lawful acquisition.