Dear PAO,

My brother lent his laptop to his co-worker when they were made to work from home since the latter said he had none to use. He already asked him several times to return his laptop, but he kept on giving different excuses. It turned out that his co-worker sold the laptop to the latter’s ex-girlfriend without the knowledge and consent of my brother. Subsequently, we went to the house of the “ex-girlfriend” and demanded from her the return of the laptop. We showed her proof of my brother’s ownership of the laptop and his conversations with his co-worker. Unfortunately, she refused as she claimed that it was already sold to her by her “ex”/my brother’s co-worker. My brother intends to file an anti-fencing complaint against the woman. Can you please enlighten us on Anti-Fencing Law?

Dear Genna,

Presidential Decree (PD) 1612, otherwise known as the “Anti-Fencing Law,” was made as a part of the law of the land because of rampant robbery and thievery that have become businesses to many lawless elements considering that there are those who are willing to buy stolen goods which are, more often than not, for much cheaper prices.

Section 2 of PD 1612 defines a “fence” as “any person, firm, association corporation or partnership or other organization who/which commits the act of fencing.” “Fencing,” on the other hand, has been defined as “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.” Under Section 5 of PD 1612, the mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery is considered prima facie evidence of fencing.

Our Supreme Court has also enumerated the essential elements of the crime of fencing and emphasized that “Fencing” is a malum prohibitum, to wit:

“(a) a crime of robbery or theft has been committed; (b) the accused, who is not a principal or an 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 crime of robbery or theft; (c) the accused knew 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 (d) there is, on the part of one accused, intent to gain for oneself or for another. Notably, Fencing is a malum prohibitum, and PD 1612 creates a prima facie presumption of Fencing from evidence of possession by the accused of any good, article, item, object or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the property” (Cahulogan vs People, GR 225695, March 21, 2018, Ponente: Associate Justice Estela Perlas-Bernabe).

To determine if there is theft in order to prove the unlawful act of fencing, it is necessary first to know its essential elements under Article 308 of the Revised Penal Code (RPC) which are the following:

(1) There is taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against person or force upon things.

In the situation you have presented, it is clear that the subject laptop was sold to another by the person who is not the owner thereof and without the knowledge and consent of said owner. Granting that your brother allowed his co-worker to borrow his laptop, this does not follow that he can sell the said item to other persons sans your brother’s permission. This act constitutes unlawful taking, which deprives the real owner of his personal property.

Meanwhile, if your brother is desirous to file an anti-fencing complaint against the ex-girlfriend of his co-worker, he needs to prove the essential elements of the crime of fencing as elucidated in the above-mentioned jurisprudence. Based on our initial appreciation of the facts you presented, the “intent to gain” of the person in possession of the laptop is manifest in her unrelenting refusal to return the property despite repeated demands of the owner.

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.