Bid to reverse judge's ruling on smoke ban

PUBLISHED : Tuesday, 03 November, 2009, 12:00am
UPDATED : Tuesday, 03 November, 2009, 12:00am

The government wants the city's top court to hear its appeal against a judge's ruling on the definition of an indoor area under the smoking ban legislation, a ruling that has upset progress of prosecutions.

Because of the ruling, the prosecution of 178 cases has been put on hold, but smoking control officers are continuing their enforcement work in accordance with the smoking law and with reference to the judge's ruling.

Senior assistant director of public prosecutions Patrick Cheung Wai-sun yesterday applied to Mr Justice Louis Tong Po-sun, of the Court of First Instance, to bring the case of Ho Yau-yin to the Court of Final Appeal.

Ho was convicted by a magistrate of holding a lit cigarette in a designated non-smoking area - the extension of Fu Kee cafeteria in Sham Tseng, an area that was enclosed with plastic curtain outside the cafeteria.

Quashing the conviction on the grounds of insufficient evidence last month, Tong also held that the legal restriction only applied to an area where four sides were all enclosed under the definition of 'indoors' under the Smoking (Public Health) Ordinance.

However, Cheung yesterday argued it was a mistaken interpretation of the law. He said the law only required an area to be at least 50 per cent enclosed.

The prosecutor asked Tong to certify the case to be heard in the top court on the basis that it concerned great public interest.

Tong reserved his decision until tomorrow.

According to the ordinance, 'indoor' is an area 'enclosed, whether temporarily or permanently, at least up to 50 per cent of the total area on all sides, except for any window or door, or any closeable opening that functions as a window or door'.

A Department of Health spokesman said smoking control officers would continue their enforcement 'according to the law and take reference from the earlier High Court ruling'.

The final ruling could affect 20 per cent of some 6,000 bars that had part of their premises unenclosed, Hong Kong Bars and Karaoke Rights Advocacy executive secretary Anita To Miu-yu said. Since the government banned smoking in pubs and bars on July, To said on average two to three bars, mostly upstairs, closed per month. Total business dropped by more than 30 per cent.

She said if the Court of Final Appeal reinterpreted the Tobacco Control Office's definition of enclosed area, more upstairs bars could survive since smokers can puff away on balconies. 'Now it is uncertain whether we can allow customers to smoke there,' she said.

If the Court of Final Appeal confirmed the ruling, she expected bars would move or renovate so they could offer a smoking area.

The office said that in September and October, a total of 599 fixed-penalty tickets were issued. It did not say where they were issued.