| SUBJECT: The Anti-Fencing Law (PD 1612) and the Concept of ‘Presumption of Fencing’ |
I. Introduction
This memorandum provides an exhaustive analysis of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, with a particular focus on the statutory presumption of fencing established under Section 5 of the decree. The law was enacted to curb the rampant resale or disposition of stolen property, which perpetuates crimes against property by providing a lucrative market for the proceeds of such crimes. The presumption is a critical prosecutorial tool, shifting the burden of evidence to the accused under specific conditions. This memo will examine the elements of the offense, the nature and operation of the presumption, relevant jurisprudence, and comparative perspectives.
II. Statement of the Issue
The primary issue is whether the statutory presumption of fencing under P.D. 1612 is constitutional and how it operates in conjunction with the fundamental presumption of innocence guaranteed to the accused under the Bill of Rights.
III. Legal Framework: Presidential Decree No. 1612 (The Anti-Fencing Law)
P.D. 1612 defines fencing as 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 be the proceeds of the crime of robbery or theft. The law punishes fencing irrespective of whether the principal perpetrator of the robbery or theft has been prosecuted or convicted.
IV. Elements of the Crime of Fencing
For a successful prosecution under P.D. 1612, the following elements must be established:
a) A crime of robbery or theft has been committed;
b) The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, disposes, or deals in the article or property subject of the crime;
c) The accused knows or should have known that the said article or property is the proceeds of the crime of robbery or theft; and
d) There is, on the part of the accused, intent to gain for himself or for another.
V. The Statutory Presumption of Fencing under Section 5
Section 5 of P.D. 1612 creates a disputable presumption of fencing. It states:
“Presumption of Fencing. – Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or theft shall be prima facie evidence of fencing.”
This legal presumption operates once the prosecution has proven the corpus delicti of the crime of robbery or theft and that the property involved therein is found in the possession of the accused. Possession must be unexplained.
VI. Operation and Constitutional Scrutiny of the Presumption
The presumption under Section 5 is not a conclusive presumption that violates the presumption of innocence. It is a disputable presumption or a presumption of fact, which merely shifts the burden of evidence to the accused. The accused is afforded the opportunity to present evidence to rebut the presumption. It does not relieve the prosecution of its primary burden to prove the corpus delicti of the antecedent crime of robbery or theft beyond reasonable doubt. The Supreme Court has upheld its constitutionality, ruling that it satisfies the “rational connection” test-there is a rational connection between the fact proved (possession of stolen goods) and the fact presumed (knowledge that the goods were stolen), given the difficulty of proving the mens rea of fencing directly. The accused’s failure to satisfactorily explain his possession gives rise to an inference of guilt.
VII. Comparative Analysis: Presumptions in Property-Related Crimes
The presumption of fencing is one of several statutory presumptions in Philippine criminal law designed to address the evidentiary challenges in prosecuting property crimes. The table below compares its operation with other similar presumptions.
| Law & Crime | Statutory Presumption | Triggering Fact (Fact Proved) | Presumed Fact | Nature & Burden |
|---|---|---|---|---|
| P.D. 1612 (Fencing) | Section 5, Presumption of Fencing | Mere possession of property previously stolen in a robbery or theft. | That the possessor is a fence (i.e., knew goods were stolen and dealt with them with intent to gain). | Disputable presumption; shifts burden of evidence to accused to explain possession. |
| Revised Penal Code, Art. 160 (Possession of Picklocks or Similar Tools) | Prima facie evidence of intent to commit crime. | Possession of picklocks, burglar’s tools, etc., without lawful justification. | Intent to use them for the commission of a crime. | Disputable presumption; shifts burden of evidence. |
| Revised Penal Code, Art. 315(2)(d) (Estafa by Issuing Bouncing Check) | Prima facie evidence of fraud. | Drawing and issuance of a check that is subsequently dishonored, and failure to make good within 3 days from notice. | Existence of deceit and fraudulent intent at time of issuance. | Disputable presumption; shifts burden of evidence. |
| R.A. 9165, Sec. 5 (Possession of Dangerous Drugs) | That the possessor has knowledge of the character of the drug. | Unlawful possession of any dangerous drug. | Knowledge (scienter) of the illicit nature of the drug. | Disputable presumption; part of the prima facie case. |
VIII. Jurisprudential Application and Limitations
Jurisprudence has clarified the application of the presumption:
a) The presumption applies only if the prosecution first proves the property was stolen in a robbery or theft. Proof of the corpus delicti of the antecedent crime is indispensable.
b) “Mere possession” refers to possession that is unexplained, suspicious, or under circumstances suggesting the accused knew the property was stolen (e.g., acquisition at a grossly inadequate price, secretive disposition).
c) The presumption cannot be invoked if the possession is shown to be lawful or if a credible explanation is provided (e.g., the accused is the rightful owner, or the property was acquired in good faith and for value).
d) The presumption does not apply if the accused is charged as a principal or accomplice in the robbery or theft itself, as P.D. 1612 punishes a separate crime committed by a third party.
IX. Defenses Against the Presumption and the Charge
Potential defenses include:
a) Lack of knowledge: Proving the accused had no knowledge, and no reason to know, the property was stolen.
b) Lawful source: Presenting evidence of a legitimate acquisition (e.g., receipt, credible testimony).
c) Good faith: Demonstrating acquisition for value and without suspicion (e.g., buying from a store, public auction).
d) Failure of the prosecution to prove the corpus delicti of the predicate crime of robbery or theft.
e) Identity: Proving the property in the accused’s possession is not the same property stolen.
X. Conclusion
The presumption of fencing under P.D. 1612 is a constitutionally permissible evidentiary rule that addresses the practical difficulty of proving the guilty mind (mens rea) of a fence. It operates as a disputable presumption that arises only after the prosecution has established the corpus delicti of the underlying robbery or theft and the accused’s possession of the stolen goods. It shifts only the burden of evidence, not the burden of proof, which remains with the prosecution throughout. The accused retains the right to rebut the presumption by presenting a credible and satisfactory explanation for his possession. When applied within its statutory and jurisprudential confines, the presumption serves as a vital instrument in the state’s effort to dismantle the market for stolen goods without infringing on the constitutional rights of the accused.
