BUYER MAY BE LIABLE FOR FENCING

Dear PAO,

I lost my bag a month ago. I reported the incident both at the café where I last had my bag with me and at the nearby police station. I kept going back to that café and the other places around, hoping that I will still find my bag because it has my wallet, phone and other important documents. As I was buying coffee a few days ago, I saw a man holding a phone similar to mine. At first, he insisted that it was brand new when he got it. But after I asked the management to help me verify if it was my phone and he voluntarily handed it to me, I found out that it is really my phone because it still has my contacts and photos. He said that someone sold it to him. Can I file a complaint against him for anti-fencing even if he claims that it was not him who stole it? He is insisting that he did not take part in stealing my phone, so he should not be held liable.

Jimbo

Dear Jimbo,

Presidential Decree (PD) 1612, also known as the Anti-Fencing Law, penalizes fencing or 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” with penalties ranging from arresto mayor to reclusion temporal, depending on the value of the property involved. (Section 2 in relation to Section 3, Id.)

From the very definition provided by the law, it is not essential to prove that the buyer, recipient, possessor, keeper, concealer or seller was the one who stole, or took part in the act of stealing, the item subject of the fencing. What is primordial is to establish, among others, that said person knows or should have known that such item proceeds from the crime of robbery or theft. In your case, the fact that the phone still has your contacts and photos should have been an indication to the man who bought it that such was highly likely a stolen article which he should not have purchased.

The Supreme Court, through Associate Justice Henri Paul Inting, also made clear that:

“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. The essential elements of the offense are:

“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.” (Benito Estrella y Gili vs. People of the Philippines, GR 212942, June 17, 2020).

Accordingly, you may pursue filing a complaint for violation of PD 1612 against the man who was in possession of your phone as long as you will be able to establish the aforementioned elements of the crime. Even if he contends that it was not him who stole your phone or that he did not take part in the untoward incident, you may still file a complaint against him because the circumstances point that he should have known that the phone he bought was stolen.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.