Top court to rule on definition of 'indoor' in no-smoking law
The city's highest court will hear an appeal from the government over a ruling on the definition of an indoor area under the smoking-ban legislation.
The government is seeking an interpretation from the Court of Final Appeal on the question of what constitutes an indoor area under the Smoking (Public Health) Ordinance.
Giving his judgment yesterday, Mr Justice Louis Tong Po-sun of the Court of First Instance certified that the question arising from his earlier judgment could be argued in the top court.
Last month, Tong held in the case of Ho Yau-yin that the smoking restriction only applied to an area that was completely enclosed, thereby defining the meaning of 'indoor'.
However, his ruling has upset the prosecution of 178 cases. Ho, a hawker-control officer, was convicted by a magistrate of holding a lit cigarette in a designated no-smoking area - the extension of Fu Kee cafeteria in Sham Tseng, an area that was enclosed by plastic curtaining but outside the main body of the business.
Quashing the conviction on the grounds of insufficient evidence, Tong made his controversial ruling regarding the definition of an indoor area, saying that such an area should be enclosed on all sides.
Applying to take the case to the Court of Final Appeal, senior assistant director of public prosecutions Patrick Cheung Wai-sun contended that an indoor area could be a space not enclosed on all sides but one with more than half of its total area enclosed.
He had told the court that the legislative intent was that a premises enclosed on three sides should be covered in the definition of 'indoor' in the ordinance, and the different interpretation used by Tong in his earlier judgment would affect the prosecution of many similar cases.
Cheung said the issue was of great importance, noting that he would not seek to overturn the result of the appeal.
According to the ordinance, an indoor area is one that is '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'.
Meanwhile, the Department of Health has indicated that tobacco-control officers would continue to prosecute offenders under the law but would take into account Tong's ruling.