What is 'ex post facto conspiracy'?

Ex post facto conspiracy is a legally impossible concept of two or more persons agreeing to commit a crime and decide to commit it AFTER the crime is consummated. According to the Supreme Court, "There can be no ex post facto conspiracy to do that which has already been done and consummated." (G.R. No. 204644. February 11, 2015)

Case law has it that one who joins a conspiracy while the felony subject thereof is being committed or before the said felony is committed and performs overt acts to achieve the common design or purpose, is criminally liable for said felony. On the other hand, one who joins a conspiracy after the felony subject of the conspiracy has been completed or consummated is not criminally liable as a conspirator. There can be no ex post facto conspiracy to do that which has already been done and consummated. When a crime has been fully committed, one not already guilty is too late to be a sharer in it, though if it is a felony, he or she may become an accessory under Article 19 of the Revised Penal Code. (G.R. No. 163593. December 16, 2005)

In PREFERRED HOME SPECIALTIES, INC. V. COURT OF APPEALS, Preferred Home Specialties, Inc., through its president, Edwin Yu (Yu), entered into an agreement with Specialty Oils, Inc. for the toll manufacturing of high quality margarine. Yu, however, had second thoughts in continuing the agreement with Specialty Oils, Inc.

Through the intervention of Harley Sy (Sy), Yu continued the agreement with Specialty Oils, Inc. However, the margarine delivered by Specialty Oils, Inc. discolored and "turned white." Yu also learned that Specialty Oils, Inc. claimed in an affidavit filed before the Securities and Exchange Commission that it was already non-operational when it entered into the agreement with Preferred Home Specialties, Inc.

Claiming that Specialty Oils, Inc. defrauded it, Preferred Home Specialties, Inc. filed a complaint for estafa against the officers of Specialty Oils, Inc. It impleaded Sy as respondent for allegedly conspiring with the officers of Specialty Oils, Inc. indefrauding Preferred Home Specialties, Inc. In a certiorari proceeding against the Department of Justice’s Resolution, the Court of Appeals ordered the criminal Complaint against Sy dismissed.

This Supreme Court affirmed the Court of Appeals’ decision, ruling that the crime of estafa had already been consummated by the time Sy intervened between Preferred Home Specialties, Inc. and Specialty Oils, Inc. According to the Court, Sy intervened after Specialty Oils, Inc. had delivered the substandard margarine. Therefore, Sy could not be held criminally liable with the officers of Specialty Oils, Inc.