Published 30 September 2019, The Daily Tribune
One of the reasons why the buy and sell industry thrives is because it saves customers a lot of money, with premium clothing, electronic items and even vehicles being sold at a small fraction of their original cost. But while the setup is indeed attractive, both buyers and sellers should be aware of stolen items that may expose them to liability.
The Anti-Fencing Law of 1979 (PD 1612) defines and punishes “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 shall buy and sell, an item which he knows, or should be known to him, to have been derived from the proceeds of robbery or theft.
Beware, Section 5 of PD 1612 provides a presumption that mere possession of any good, article, item, object, or anything of value, which has been the subject of robbery or thievery, shall be prima facie evidence of fencing. In other words, a person found in possession of stolen property has the burden to show that he did not know or could not have known that the property was stolen, and there is no intent to gain on his part.
Given this presumption, how does a legitimate businessman protect himself and his customers? Under the law, all stores, establishments or entities dealing in the buy and sell of any good, article, item, object of anything of value obtained from an unlicensed dealer or supplier thereof, shall secure the necessary clearance or permit from the station commander of the police authority in the town or city where such store, establishment or entity is located — before offering the same for sale to the public. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence.
In the case of Mariano Lim vs People (GR 211977, 12 October 2016), a heavy equipment stolen from the Department of Public Works and Highways (DPWH) was found in the possession of the accused. In his defense, the accused said that he bought the heavy equipment from Petronilo Banosing who showed him a certificate of ownership that stated that the heavy equipment was his.
In overturning his conviction, the Supreme Court laid down the following elements of PD 1612:
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.
The High Court ruled that the first and elements were not established because the DPWH did not present satisfactory evidence to prove its ownership of the equipment and the fact that it had been stolen.
The third element is also absent. The presumption under Section 5 of the law was overcome by the certificate of ownership presented by Banosing to the accused. Being a duly notarized document which, by virtue of its notarization, it enjoys a presumption of regularity. The accused need not obtain a police clearance first because it is only required if several conditions are met: first, that the person, store, establishment or entity is in the business of buying and selling of any good, articles item object, or anything of value; second, that such thing of value was obtained from an unlicensed dealer or supplier thereof; and third, that such thing of value is to be offered for sale to the public. Here, the accused did not appear to be engaged in the business of buying and selling, neither did it appear that he had intended to sell the equipment to the public.
They say the key to profit is buying low and selling high. But with the lesson taught by PD 1612, the key is to first buy with confidence and with due diligence, so that a profitable sale will not turn into a transaction filled with regret.
For comments and questions, please send an email to cabdo@divinalaw.com.
