2010 Criminal Law, Q5

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%)

Quick check

What is an indispensable element that the prosecution must prove to convict an accused of fencing under PD 1612?

When does the statutory presumption of fencing under Section 5 of PD 1612 apply?

What is the legal effect if the prosecution fails to establish that property seized from an accused was stolen?

Under PD 1612, what is the nature of the offender's knowledge required for the crime of fencing?

Why does mere possession of brand-new luxury items in an ukay-ukay store NOT automatically constitute fencing?

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.

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The questions reproduced here are the official texts of the Philippine Bar Examinations, published by the Supreme Court. They are reproduced for study purposes.The suggested answers are the author’s own.

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