HKSAR v. TSAI YUK YUEN

HCMA 635/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 635 OF 2009

(ON APPEAL FROM ESCC 2354/2009)

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J U D G M E N T

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1.  On 14 July 2009, Tsai Yuk-yuen (the Appellant) was convicted, following a trial before Mrs Adriana Tse, a Magistrate at Eastern Magistrates’ Court, of the theft of seven sets of documents from the 10^th floor of the City Hall Public Library at 7 Edinburgh Place in Central.  The Appellant was fined $1,000 and she now appeals against her conviction.

Case for the Prosecution

2.  The library at Edinburgh Place has a section devoted to reference books and documents known as the Reference Library which is housed on the 9^th, 10^th and 11^th floors of the building.  The books and documents kept in that section cannot be taken away from the Reference Library and there were notices to that effect in various places to reinforce this rule.  There were, however, photocopying facilities available.  The only entrances to the Reference Library were on the 9^th and 10^th floors although they and the 11^th floor were all connected by an internal staircase.  For this reason, the only way into or out of the 11^th floor Reference Library was by means of the staircase to the 10^th floor.

3.  On the 10^th floor, where the alleged offence occurred, there were four turnstiles at the entrance/exit, two for coming into the Reference Library and two for leaving it.  There were sensor panels installed about two steps in front of the exit turnstiles and these were there as a security device to detect anyone trying to take books or materials out of the Reference Library which is never allowed.  If the alarm sensor was triggered, the exits would be automatically locked.

4.  It was the operation of the alarm system in the Reference Library on 17 May 2009 between 4:15 pm and 4:30 pm which gave rise to the discovery that the Appellant was carrying seven sets of documents inside her bag as she approached an exit turnstile.  When Ms Ma Chui-lin (PW1) heard the alarm, she saw the Appellant at the turnstile apparently trying to leave.  The Appellant stood at the position which PW1 marked on a photograph which I have been shown (Exhibit P2) and PW1 described the Appellant as facing “towards the exit”.  PW1 immediately ran from her workplace, which provided her with a full view of the turnstiles from a distance of about 20 feet away.  As she did so, she saw the Appellant step back from the turnstile and hurriedly walk up the stairs to the 11^th floor.  The Appellant was called back by PW1 when she was only halfway up the stairs and she complied with PW1’s request to return to the 10^th floor.

5.  The Appellant was asked to open her bag and, on her own initiative, she removed some documents of the Hong Kong Open University which were normally kept in hardback folders kept on the shelves on the 10^th floor in the Reference Library.  The documents, however, were now out of their folders in four packets (Exhibit 4A-D). 

6.  PW1 told the Appellant that these documents should not be taken out of the Reference Library.  The Appellant replied that she was in such a hurry after her revision that she put them together with her notes into her bag.  PW1 asked the Appellant why she had gone upstairs and she received the reply from the Appellant that she had wanted to put these items back in their original place.  Not surprisingly, PW1 found that answer to have been rather strange as these documents did not come from the 11^th floor.  Instead, they came from the 10^th floor where the Appellant had been trying to leave through the turnstile.  It seemed to PW1 that the Appellant went on to say that it was the first time she had been to this library and it is right to say that there is no evidence that the Appellant had ever been there before.

7.  Although the Appellant had the seven sets of documents inside her bag, the folders in which they had originally been kept (Exhibit P5A-B) were still on the library shelves as shown in the photographs (Exhibit P1C-E).

8.  The Appellant’s counsel at trial asked PW1 a number of questions but none of PW1’s evidence was actually challenged.  PW1 agreed, in particular, during cross-examination that a person does not actually have to walk between the alarm sensor panels to trigger the alarm so long as he or she is at a close distance to them.  PW1 also confirmed that library users could utilise the 9^th, 10^th and 11^th floors for studying or reading newspapers and magazines.  She had not previously seen the Appellant at the library.

9.  Woman Police Constable Tsui Kam-mei (PW2) arrived at 4:28 pm and arrested the Appellant who simply stated that she had “forgotten”.  She agreed, in cross-examination, that the Appellant had said that she was hungry.  As to this, PW1 had earlier given evidence that if someone was looking for something to eat, this would have to be purchased outside the Reference Library.

10.  In short, it was the case for the prosecution that the Appellant had been stopped from leaving the Reference Library with documents she had hidden inside her bag because of the activation of the security device at the exit and that she had then taken fright and tried to go back up to the 11^th floor to dispose of the documents after being found out by the alarm system.

Defence Case

11.  The Appellant gave evidence that she had worked for an accounting firm for ten years and was in the process of studying for a final examination in Business Law which had made her more nervous than she usually was as she described herself as a nervous person.  She had not eaten all day when she went to the City Hall Library at 2:00 pm.  She said she had never previously been there.  She took with her some notebooks, books and stationery inside her bag.

12.  The Appellant explained that she went up to the 11^th floor to read and study.  She found that there was something she could not understand so that she needed to look at more books of reference.

13.  She then began to feel hungry and she said:

“I was thinking of resuming my study after having something to eat, so I tidy up everything, put them into the environmental friendly bag then --well, I thought that the notes and materials which I’ve taken from the shelves previously were of such a large pile that I tidied them up by putting all of them inside the environmental friendly bag.” (Transcript p. 74)

14.  She went on to say that she was thinking of going back to the library after finding something to eat.  She walked downstairs from the 11^th floor and she said: “… on my way I was thinking of putting back some notes back to the shelves.”  She went back to the 10^th floor, turned left and then “suddenly” she said: “I heard the alarm going off.”

15.  She said she had then thought she had “mixed up her directions” so that she went back up to the 11^th floor.

16.  In cross-examination, the Appellant stated that she had left the 10^th floor to go up to the 11^th floor because there was someone on the 10^th floor sitting near her who had a cold.  Having gone up to the 11^th floor, she then had to go back down to the 10^th floor to find the reference items that she needed.  She then found Exhibit P4C which she took out of its folder before going back upstairs to the 11^th floor with it.  She had physically removed the documents in Exhibit P4C from the folder as it would otherwise, according to her, have taken up too much space on the table.  However, just dealing with this point, when the documents were put back into the folders at trial, it was observed that they took up about the same amount of space but the Appellant responded to this by saying that it was her habit to have the documents in piles.  She agreed that she had returned the empty folder from which these documents had come to the shelf but she intended, she said, to return the documents to the folder.

17.  Later, when she found that she could not fully understand something in Exhibit P4C, which was in English, she decided to go back to the 10^th floor to collect the Chinese version so that she could compare the two versions.  The Chinese documents that she wanted to look at involved, she said, about 50 pages which she again removed from their folder.  She looked at the headings on those pages and she studied the Chinese version for about an hour before deciding to go out for something to eat.  In fact, she said, she was getting a mild stomach ache because she had not eaten all day.

18.  Again, the Appellant said she went down to the 10^th floor.  She had put everything into her bag.  She denied intending to take the Library’s documents found inside her bag back to her home later.  She said she was shocked when the alarm was triggered but she denied continuing to walk towards the turnstile as PW1 appeared to have indicated in her evidence.  She said it was her intention to return the documents to the folders from which they had come but she got scared as soon as the alarm sounded and she thought to herself that she had taken the wrong direction.  She said that she was “confused” at the time as opposed to feeling shocked, as the prosecutor had suggested, because she had been caught out taking the documents from the library.

19.  At no stage in the Appellant’s evidence did she precisely indicate where she had been standing when the alarm went off.  In short, it was the Appellant’s case that she was going to return the documents to their folders and she had no intention of taking them for her own use.  She said that she had seen the same documents in the Central Library.

Grounds of Appeal

20.  Mr Duncan SC, on behalf of the Appellant, did not provide any written argument in advance of these proceedings but he expanded, in his oral submissions, on the four amended grounds of appeal that he had drafted.

21.  The first two grounds are effectively part of the same.  Mr Duncan submitted that:

“1.   The learned Magistrate erred in determining that the evidence of the Appellant was ‘ludicrous and contrary to common sense …’ (RV 19).

2. In fact the evidence of the appellant was consistent with her having made a wrong turn when she reached the bottom of the staircase and being confused by the layout of the library (there being no evidence that she had previously been to the library.)”

22.  This is a complaint, when the passage taken from Reasons for Verdict is put into its full context, that the Magistrate fell into error when deciding to reject the account given by the Appellant.  However, the context in which the Magistrate chose to describe the Appellant’s evidence as “ludicrous and contrary to common sense” is very important here.  The Magistrate had found that the clear and direct testimony given by both PW1 and PW2 had been “honest and credible” so that she had felt able to accept their evidence in contrast to the evidence given by the Appellant which she was not able to believe.

23.  The Magistrate gave eight of the “most salient” examples to illustrate why the Appellant was not a witness of truth.  She said:

“(1)  The Defendant stated that she took out P4A-D from their respective folders because the folders would take up too much room.  It was evident from her demonstration in Court that the folders took up about the same amount of space as P4A-D;

(2)   Counsel suggested that since P4A-D were stapled together, it was easier to keep them open if the folders were removed.  Firstly, that was not the explanation given by the Defendant.  Further, since the bundles were stapled together, it was just as difficult to keep them open with or without the folders.  There was simply no legitimate reason for the Defendant to remove P4A-D and place the empty folders back on the shelf;

(3)   PW1 stated that she saw the Defendant at the turnstile after the alarm had sounded.  This evidence was never challenged.  However, according to the Defendant, she had not even entered the sensor panel area when the alarm sounded.  After the alarm sounded, she immediately turned back.  Her evidence was contrary to undisputed evidence;

(4)   The Defendant explained that she had taken a wrong turn at the bottom of the staircase.  It was extraordinary.  She admitted that she had gone down to the Reference Library to obtain P4A-D on 2 occasions.  There was no reason for her to take a wrong turn;

(5)   The Defendant stated that she was worried that P4A-D would be scattered and that was the reason why she had placed them inside her bag.  This was wholly incredible.  There was no dispute that the 4 bundles were stapled;

(6)   The Defendant said that she intended to go back to the Reference Library to continue her studies after eating some food.  This was contrary to what she had told PW1.  She told PW1 that she had finished studying;

(7)   The Defendant explained that she intended to place P4A-D back in their folders when the alarm sounded.  This was contrary to what she told PW1 and PW2.  She told them that she had forgotten.  She never alleged that she had taken a wrong turn until the trial;

(8)   There was no reason for the Defendant to forget about the existence of P4 in her bag.  Even the Defendant admitted that the documents were very heavy and bulky.” (Reasons for Verdict p. 21-24)

24.  Example (4), as identified by the Magistrate as a reason she did not believe the Appellant, is related directly to the 2^nd ground of appeal.  The evidence of the Appellant had been, as I have stated earlier, that the Appellant had first gone to the 10^th floor but left, she said, after half an hour.  This was in order to go up to the 11^th floor because the lady sitting near her was showing symptoms of having a cold.  Later, she went down to the 10^th floor again and then went back up to the 11^th floor.  Then she went back down again to the 10^th floor and back up to the 11^th floor.  Eventually, on her last descent to 10^th floor, the alarm went off. 

25.  So, the position, in short, was that the Appellant had been several times to the 10^th floor from the 11^th floor.  On her third and final descent, when she had decided to go out to find something to eat, she turned left at the foot of the staircase.  This could, as everyone in this case accepted, only be consistent with someone who was intending to leave the Reference Library by the exit turnstiles because there was nothing else in that direction.  PW1’s evidence confirmed this and there was, it seems, no reason, at the moment the Appellant reached the bottom of the stairs and before the alarm went off, for the Appellant to have been confused.  All the Magistrate was saying on this point was that the Appellant had no reason to have taken a wrong turn.

26.  Having reviewed the point myself, without the added advantage of having seen and heard the witnesses give their evidence, I can find no error in the Magistrate’s approach.  There was no reason for the Appellant to have become confused in her direction at the foot of the staircase or about the layout of the library before the alarm rang out.  Of course, the point did not stand alone.  It was one of many.

27.  Some of the other reasons given in paragraph 19 of the Reasons for Verdict are also criticised under the 3^rd ground of appeal to which I shall turn in a moment but, if the Magistrate was correct, the eight factors set out in paragraph 19 of her Reasons for Verdict did provide cogent reasons in combination for saying that the Appellant’s evidence was contrary to common sense.  Perhaps criticism of the word “ludicrous” can be made on the footing that a superlative of that kind is seldom justified but, if the Magistrate had merely said “contrary to common sense”, it came much the same thing.  In particular, the Magistrate did not accept the Appellant’s reason for removing the numerous pages in Exhibit P4A-D from their folders and this was plainly a significant factor in the prosecution’s case.  Placing these bulky and heavy documents inside her bag, as the Appellant said she had done in order to avoid them getting scattered, also made no sense as they were stapled together. 

28.  The remaining points covered by paragraph 19 of the Reasons for Verdict overlap to some extent with the remaining grounds to which I shall now turn.

29.  In the 3^rd ground, three specific criticisms are made in which Mr Duncan suggested that the Magistrate had “misunderstood” the evidence.  He submitted that: “Contrary to the finding of the Magistrate that ‘according to the [Appellant] she had not even entered the sensor panel area when the alarm sounded’, the evidence of the [Appellant] was not to that effect at all.”

30.  In looking at this aspect of the evidence, which also has a considerable bearing on the 4^th ground to which I will come in due course, the Appellant had, in her testimony, denied ever walking up to the turnstile itself.  Although this was, it is true, contrary to PW1’s unchallenged evidence which the Magistrate had accepted, there was, in addition, evidence from PW1 that the alarm sensors could be triggered if a person was at a very close distance to the sensor panels and was either “before or to one side” of them.  Defence counsel, in a submission of no case to answer at the end of the prosecution’s case principally aimed at suggesting that this was an attempted theft rather than the full offence, made the following suggestion:

“You’ve seen from the photographs the layout from the sensors.  If you -- and the metal bars are actually quite close, so if you start to go through the sensors, it all happens at once because you’re in motion, you’re walking through, and, as my friend says, it’s two steps.  You know, you’re just there and that’s what happens.  You can’t actually get out, so, I think that our submissions are well-founded because of this -- you’re alerted by the security of the alarm, and if you’re in the process of walking, you’re there.  And you can see that from the photographs.” (Transcript p. 68)

31.  On any view, the Appellant must have been close to the turnstile to set off the alarm.  However, by the close of the case, the Appellant never having said, perhaps because she was never directly asked, precisely where she had been standing, defence counsel addressed the Magistrate in these terms:

“… So, she’d come down the stairs, you’ve got to come through or around something there, but if she came down the stairs like that – she would then come into this area because we’ve seen that there is this floor area here and that would set off the sensor.  And we would invite you to accept that’s exactly what happened.  Doesn’t necessarily mean that she was exiting the premises because one can then, one either goes -- if you don’t know whether to go right or left when all the sensors go off, and she was confused.

And we would invite you to accept that even if she had stepped slightly to her left further to the turnstile, she couldn’t have done so because of the barrier there, and we would invite you to accept, and accept her evidence, that she was coming into this area to put the materials back, but the sensor went off.  And then at that stage, she went back upstairs, and the library assistant asked her to come back downstairs. …” (Transcript p. 38)

32.  It can be seen immediately how the defence was finally being put and from this, and the way the Appellant’s evidence never fully explained where she was standing, it seems a reasonable assumption on the part of the Magistrate to have concluded that the defence case was that the Appellant had “not even entered the sensor panel area when the alarm sounded”.  I shall return to this topic again when I deal with the 4^th ground of the appeal as the argument on that ground has some bearing on this.

33.  The point at issue in ground 3(a) is also affected by the evidence given about the points raised in grounds 3(b), (c) and (d).  The first of these was that:

“(b) contrary to the finding of the Magistrate that the Appellant ‘… told PW1 that she had finished studying…’ (RV 19(6)), this was not the evidence of PW1.” 

The second and third points raised were that:

“(c)  contrary to the finding of the Magistrate that the Appellant ‘… told PW1 and PW2 that she had forgotten …’ (RV 19(7)), this was not the evidence of PW1 or PW2:

(i) the evidence of PW1 appears at T17 I-N and does not state that this is what the Appellant said;

(ii)    the relevant evidence of PW2 appears at T21 and is equivocal: it is consistent with PW2 having forgotten what the Appellant said or that the Appellant said that she had forgotten where she should put back the library materials on the 10^th floor of the Library.”

34.  Taking each point in turn, while it is perfectly true that the Appellant did not say, in terms, that she had “finished studying”, and certainly said nothing of the kind to PW2, the inference to be drawn from what she actually said to PW1 was a clear one.  The Appellant had stated that she had gone to the library in order to do her “revision”.  As Mr Thomas Law, for the Respondent, in his careful written analysis of the evidence, pointed out, the words ‘revision’ and ‘studying’ were repeatedly used in the trial and it was PW1’s evidence that the Appellant said she had been in such a hurry “after her revision” that she had put the [Open University] materials together with her notes into her bag.  In my opinion, the Magistrate was fully entitled to have concluded from this that the Appellant was saying she had finished studying.  Indeed, without straining the language, it is hard to find any other interpretation.  I was unable to accept Mr Duncan’s suggestion that this was equally consistent with the Appellant intending to come back later after she had found something to eat.

35.  This point is closely connected to the next, which concerns the Magistrate’s finding that the Appellant had said to PW2 that she had “forgotten” [the Open University materials in her bag].  The earlier point, to the effect that the Appellant was in a “hurry” and had put the documents into her bag when she had completed her revision can, in reality, only mean that, according to her, she had forgotten the materials in her bag.  Mr Duncan, however, submitted, to begin with, that this was not the answer given by the Appellant to PW2, but PW2’s answer to the court when asked what the Appellant had said after she had been arrested.  In context, however, the answer is plain enough to understand:

“Q.    … So, what did you arrest her for?

A.  Theft.

Q. Did you caution her?

A.  Yes.

Q. After cautioning, what -- did she say anything to you?

A.  Yes.

Q. What did she say?

A.  I’ve really forgotten.”

(Transcript p. 64)

36.  Mr Duncan did not pursue this point after I had raised the question whether the answer was recorded in the police officer’s notebook.  Mr Law confirmed that it was and that the content of the notebook would not be helpful to the Appellant’s case.  Mr Duncan then very sensibly dropped that aspect of this ground of appeal.

37.  This answer is particularly significant in the light of the Appellant’s defence which was to the effect that she was going to return the Open University documents to their files on the shelf before she went out for something to eat.  If that were so, there would be no reason to hurry, no reason to forget they were in her bag and certainly no reason to head for the turnstiles on the left when the shelf holding the folders for the Open University material was on the right, in the opposite direction on the 10^th floor and not, of course, on the 11^th floor where the Appellant was heading towards by the time she was stopped.  Again, I have to say that I cannot accept Mr Duncan’s submission that the answer that she had “forgotten” was also consistent with the Appellant having forgotten which way to go to find the folders.  The circumstances speak louder than words and the point has to be taken in its full context including the fact that the Appellant then chose to make her way back to the 11^th floor.  In this regard, the evidence about the Appellant’s manner on the staircase leading to the 11^th floor was given by PW1 who had said the Appellant was walking “hurriedly” and also by the Appellant herself who said that she “immediately rushed back to the 11^th floor with the intention of putting the books back” after the alarm had gone off.

38.  I found no merit in the criticisms raised on the Appellant’s behalf under this ground having also, for my own part, reviewed the evidence in great detail.

39.  The 4^th and last ground amounted to an attack on the competence of defence counsel at trial by criticising his failure to object to the prosecutor’s leading questions as to one part of PW1’s evidence and his omission to cross-examine PW1 about the evidence she had given that the Appellant was “… at the turnstile”.

40.  Again, taking each issue in turn, it is right to say that at the outset of the trial defence counsel had made it plain to the court that PW1 could, for the most part, be led throughout.  The relevant passage is as follows:

“And if it assists my learned friend, I have seen the statement of this lady and I have no objection to most of her evidence being led.” (Transcript p. 47)

41.  The questions which PW1 was asked by prosecuting counsel which are criticized were these:

“Q.  Thank you.  Now, on 17 May 2009, at about 4.15 that day you were on duty at your station – work station, is that right?

A,    Yes

Q.    So, you saw someone trying to get out of the library from the 10^th floor.

A.    Yes.

Q.    Okay.  What caused your attention?  Is it the alarm rang, is that right?

A.    Yes.

Q.    Okay.  So, you saw a female trying to go out.

A.    Correct.”

(Transcript p. 56)

PW1 had made a statement which the defence had been given in which, effectively, PW1 was saying that the alarm had gone off when a lady tried to leave.  Indeed, having given the evidence that the Appellant was apparently leaving, defence counsel did not challenge this.  In any event, it is plain, from the mark placed by PW1 on a photograph to show the Appellant’s position at the turnstile, that the evidence given in answer to the leading questions she was asked would equally have been given to non-leading questions.  It is perfectly clear also that PW1’s account at that stage of the case was not in dispute.

42.  I could therefore find no merit in this aspect of the 4^th ground.  The whole basis of the defence case had been that the Appellant had made a wrong turn at the foot of the stairs leading from the 11^th floor.  PW1 had spoken of the Appellant facing the turnstiles.  If a “wrong turn” had been taken by mistake, then this would not necessarily have been inconsistent with the Appellant leaving by the Reference Library exit to find something to eat having forgotten the Open University material in her bag.  It is no surprise that defence counsel had no objection to these questions or to the answers which were given to them.

43.  The more important issue, which follows on from this, is contained in ground 4(b).  This was a criticism of defence counsel for not cross-examining PW1 to illustrate the dispute which it is said there was about where the Appellant was standing when the alarm went off.  I have, for this purpose, been provided by Mr Duncan with an affirmation made by the Appellant on 13 July 2010 in which she states: “The issue of where I had reached was not addressed in the Instructions: it arose during the conference with counsel.”  However, there is a serious question mark as to whether this was, in reality, an area of dispute at the outset of the trial.  Mr Law pointed out that in PW1’s witness statement, also provided to me by Mr Duncan, it was never made plain by PW1 where exactly the Appellant had been standing when the alarm went off.  What she said was this:

“(4)  About 1615 hours on same date, I heard the ringing of the security alarm.  I looked across.  At the time I saw a Chinese lady, about 30 year old in light colour top, dark colour pants, long haired, fat, holding a white flower-patterned environmental protection bag.  And at the time, there was only the aforesaid lady.

(5)   Because once the [security] alarm of this library was on, the individual passing bars at the exit will be automatically locked, no (one) can get through.  I saw that lady hurriedly walking back up to 11^th floor.  I hence walked across to the staircase, and asked that lady to stop. …

…

(8)   I added that when I heard the [security] alarm, (I) saw the lady outside the [security] bars, and this direction was only for exit, there were no books for people to read in this direction, only people leaving would walk to this direction.”

44.  No doubt, it was on this basis that defence counsel had indicated that he had no objection to prosecuting counsel leading the witness.  It was only at trial that PW1 stated that the Appellant was “at the turnstile” although, more significantly in the present context, she also disclosed at trial that the alarm could be activated even before someone actually passed through the panels containing the alarm sensors so long as they were very near to them.  This gave an opening for suggesting that a person might not actually have been heading for the turnstile but could simply have been close by.

45.  I have been referred to an affirmation made on 13 July 2010 in which the Appellant stated she had “reached the sensor area” but had not reached the turnstile and that, whilst this was not in the written instructions given to counsel, it was discussed with him in conference. 

46.  I am bound to say that I approach this statement with considerable circumspection.  On any view, the Appellant was close to the sensors which were described as two steps away from the turnstiles.  Whilst the presentation of the defence, as I indicated earlier, certainly gave the impression in the end that it may have been that the Appellant never passed between the sensors, this appears to have been a late development which was raised in the defence case.  The whole basis of the defence was that the Appellant had taken a “wrong turn” and in reality there was really no dispute that the Appellant was going the wrong way to have returned the Open University documents, assuming she ever had such an object in mind.

47.  The Magistrate was, in my view, correct in observing that there had been no challenge to the evidence that the Appellant was “at the turnstile” when PW1 saw the Appellant there.  There may have been a very slight shift in the presentation of the defence case but I do not think that this reflects a valid criticism of counsel.  Accordingly, I can place no weight on the Appellant’s affirmation.

48.  I was referred in the course of argument to the judgment of Sir Thomas Eichelbaum, NPJ in Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126 at 144 where he stated in a case which was concerned with the incompetence of trial counsel:

“The bottom line is that to succeed [on an appeal turning on counsel’s conduct of the trial], the Appellant must be able to show that he or she received less than a fair trial.”

49.  Now, in this case, the Magistrate was well aware of the issues and she provided a full and clear understanding of these in her Reasons for Verdict. 

50.  There was, at trial, no real factual dispute between the Appellant’s case and the prosecution’s.  The issue in this case was firmly focused on the Appellant’s intention when she placed the university material kept at the Reference Library inside her bag on the 11^th floor, having earlier removed the material from their folders kept on the library shelf on the 10^th floor.

51.  The Magistrate had well in mind that the Appellant had a clear record and she had applied that information appropriately.

52.  I have also reviewed the evidence from the trial transcripts of the evidence, the ‘no case’ submission and defence counsel’s final speech.  The evidence pointed very strongly indeed towards the Appellant’s guilt and it would have been most surprising if the Magistrate had reached any other verdict than one of guilty.

Conclusion

53.  This appeal is dismissed.