SMOKING (PUBLIC HEALTH) ORDINANCE

SMOKING (PUBLIC HEALTH) ORDINANCE

LAWS OF HONG KONG

SMOKING (PUBLIC HEALTH) ORDINANCE

CHAPTER 371





CHAPTER 371

SMOKING (PUBLIC HEALTH) ORDINANCE

ARRANGEMENT OF SECTIONS

Section..................................... Page

PART 1
PRELIMINARY

1. Short title ............................1 ... ... ... ... ... ... ... 2

2. Interpretation............................. ... ... ... ... ... ... 2

PART II
No SMOKING AREAS

3. Prohibition on smoking in no smoking areas ... ... ... ... ... ... ... 3
4. Setting aside of no smoking areas ......... ... ... ... ... ... 4

5. Display of signs in no smoking areas ....... ... ... ... ... ... ... ... ... 5

6. Powers exercisable in relation to persons smoking in no smoking area ... ... 5

7. Offences under Part 11 ................. ... ... ... ... ... ... ... ... 5

PART III
SALES OF CIGARETTES AND CIGARETTE TOBACCO
8. Health warnings and tar group designation when cigarettes sold ... ... ... 6

9...........................Health warnings when cigarette tobacco is sold ... ... ... ... ... ... 6

10................Offences under Part III .... ... 1 . ... ... ... ... ... ... ... 6

1 0A............Seizure and forfeiture .... ... ... ... ... ... ... ... ... ... ... ... 7

PART IV
CIGARETTE ADVERTISING
11. Cigarette advertisements in printed publications ... ... ... ... ... ... 8

12.............................Health warning when cigarette advertisement displayed ... ... ... ... 8

13....................Cigarette advertisements on radio ... ... ... ... ... ... ... ... ... 9
14....................Meaning of cigarette advertisement ... ... ... ... ... ... ... ... ... 9

15................Offences under Part IV ..... ... ... ... ... ... ... ... ... ... ... 10

PART V
SUPPLEMENTARY

16..............Evidence of tar group ..... ... ... ... ... ... ... ... ... ... ... ... 10

17...........[Had its effect.] ............... ... ... ... ... ... ... ... ... ... ... 10

18. Regulations and Orders..... ... ... ... ... ... ... ... ... ... ... ... 10





CHAPTER 371

SMOKING (PUBLIC HEALTH)

To prohibit smoking in certain areas, to provide for the display of a
health warning and other information on cigarette packets and
in cigarette advertisements and for matters incidental thereto.

[Part 1, Part IV (except sections 11
and 12) and Part V 13 August 1982.
Section 11 15 November 1982.
Part 11 and section 12 (except in
relation to advertisements by way
of neon signs) 15 February 1983.
Section 12 (in relation to advertise-
ments by way of neon signs)15 May 1983.
Part 111 15 August 1983]

PART 1

PRELIMINARY

1. This Ordinance may be cited as the Smoking (Public Health)
Ordinance.

2. In this Ordinance, unless the context otherwise requires

'advertisement' means any announcement to the public made or to be
made in any manner;

'brand', except in section 14(3). includes a brand product, that is to say
a variety of a brand marketed as having qualities differing from
another variety of that brand;

'cigarette' means tobacco rolled up in paper or in any other material
except tobacco. in such form as to be capable of immediate use for
smoking;

'cigarette advertisement' has the meaning assigned to it by section 14;

,,cigarette tobacco' means tobacco packaged as being suitable for the
making by the purchaser of cigarettes for his own use;

'class' in relation to a class of seats means a class defined by reference
to their price, all seats sold at the same price on the same occasion
to the same category of persons being deemed to belong to the
same class;

'ferry vessel' means a vessel operated on a ferry service as defined for
the purposes of the Ferry Services Ordinance and having seating
accommodation for 50 or more passengers;

land vehicle' means a vehicle other than a train used on land for the
transport of members of the public for hire or reward;





'manager' in relation to

(a)a cinema, theatre, concert hall or public transport vehicle
service, includes an assistant manager, any person holding an
appointment analogous to that of manager or assistant
manager or any person who is responsible for the
management, or is in charge or control of the cinema, theatre,
concert hall or public transport service;

(b)a lift, includes the owner, occupier or lessee of the building in
which the lift is situated or the person in charge or control of
such building or lift;

'newspaper', local newspaper and 'printed document have the same
meaning as in the Control of Publications Consolidation
Ordinance;

'no smoking area', except in section 5(2), means an area or place in
which smoking is prohibited by section 3;

'proof of identity' means proof of identity for the purposes of Part IVA
of the Immigration Ordinance;

'public lift' means a lift to which the public have access and includes
any lift giving access to separately occupied flats, offices or other
units of accommodation and a hotel lift;

'public transport vehicle' means

(a) a ferry vessel;

(b) a land vehicle; or

(c) a train;

while the vessel, vehicle or train is transporting members of the
public, but excludes a taxicab, private hire vehicle or other vehicle
or vessel hired or chartered to an individual whether on his own
behalf or that of a number of persons;

'publish' in relation to an advertisement means making known an
advertisement in any manner;

'regulations' means regulations under section 18;

'retail container' means a container suitable for the retail marketing of
cigarette packets;

',smoke' means inhaling and expelling the smoke of tobacco or other
substance;

'train' means a train of linked carriages used for the transport of
members of the public for hire or reward.

PART 11

No SMOKING AREAS

3. No person shall smoke or carry a lighted cigarette. cigar or pipe
in





(a) any area demarcated as a no smoking area under section 4,

(b) any public lift;

(c)any land vehicle, being a public transport vehicle, having only
one deck;

(d)the lower deck of a land vehicle, being a public transport
vehicle, having more than one deck.

4. (1) The manager of a cinema, theatre or concert hall shall set
aside not less than 50 per cent of each class of its seating
accommodation as an area in which smoking is prohibited; and he may
set aside all such accommodation.

(2) The manager of a public transport service shall set aside not
less than 50 per cent of each class of seating accommodation in every
public transport vehicle of that service, not being a vehicle to which
paragraph (c) or (d) of section 3 applies, as an area in which smoking is
prohibited; and he may set aside all such accommodation.

(3) For the purposes of this section-

(a)an area shall be deemed to have been set aside under
subsection (1) only while it is open to the public;

(b) a cinema, theatre or concert hall means-

(i) any building or part of a building used primarily as a
cinema, theatre or concert hall, whether or not it is being so
used at the material time, other than the premises of any club,
association or other body in which films are exhibited, or plays
or music performed for the benefit primarily of the members
thereof and their guests;

(ii) any place of public entertainment licensed under the
Places of Public Entertainment Ordinance while open to the
public on account of any concert, stage play, stage
performance or other musical, dramatic or theatrical
entertainment or any cinematograph display;

(c)the passenger carriages of a train shall be deemed to be a
single vehicle.

(4) Subject to compliance with the provisions of this section,
seating accommodation set aside under this section as a no smoking
area may be varied by increasing or reducing that area or by
substituting another area in place thereof.

(5) Any seating accommodation demarcated as an area in which
smoking is prohibited by signs placed in compliance, or purported
compliance, with section 5 shall be deemed to have been set aside under
this section.

(6) In setting aside seating accommodation under this section the
manager shall comply with any prescribed requirements relating to
the relative positioning of smoking and no smoking areas.





(7) The Secretary for Social Services may in writing exempt-

(a)the manager of any cinema, theatre or concert hall from
compliance with subsection (1) in relation to any occasion;

(b)the manager of a public transport vehicle from compliance,
either temporarily or permanently, with subsection (2) in
relation to any vehicle or vessel.

(8) [Deleted, 73 of 1982, s. 391

5. (1) The manager shall place in a prominent position in each no
smoking area a sufficient number of signs in English and Chinese to
indicate that smoking is prohibited in the area; such signs shall be of
the prescribed description and shall be maintained by the manager in
legible condition and good order.

(2) Where an area was designated as a no smoking area prior to the
coming into operation of this Ordinance, the manager shall be deemed
to have sufficiently complied with subsection (1) in relation to the
description of the signs if the signs, being signs placed before such
coming into operation, are in English and Chinese and are to the effect
that smoking is prohibited.

6. (1) The-

(a)manager or any ticket collector or usher of any cinema,
theatre or concert hall or such employee as the manager may
authorize in that behalf;

(b)driver., conductor, inspector, ticket collector of any public
transport vehicle or such other employee as the manager may
authorize in that behalf,

(c)manager of a public lift or such employee as the manager may
authorize in that behalf,

may require any person who smokes in a no smoking area to cease
smoking forthwith, indicating the penalty therefor, and if he fails to do
so, require him to give his name and address and to produce proof of
identity.

(2) Any person who fails to comply with a requirement to cease
smoking made under subsection (1) shall be deemed to be a trespasser
and, if he is required to leave, or he is removed from, the building or
vehicle in which the no smoking area is situated, he shall not be entitled
to a refund of any admission fee or money paid by him for entry into the
building or transport by the vehicle:

Provided that nothing in this section shall have the effect of
deeming a person who smokes in a public lift to be a trespasser in the
building (other than the lift) in which the lift is situated.

7. (1) Any person who contra venes section 3 commits an offence
and is liable on summary conviction to a fine of $1,000.





(2) Any person who fails to give his name and address ss or to

produce proof of identity when required to do so under section 6 or
who then gives a false or misleading name or address commits an
offence and is liable on summary conviction to a fine of $3,000.

(3) Any manager who-

(a)fails to set aside any area as a no smoking area in accordance
with section 4; or

(b)fails to place signs in accordance with section 5 or to maintain
the signs in the manner required by that section,

commits an offence and is liable on summary conviction to a fine of
$5,000.

PART 111

SALES OF CIGARETTES AND CIGARETTE TOBACCO

8. (1) No person shall sell, offer for sale or possess for the
purposes of sale any cigarettes unless the packets thereof and, if the
packets are within a retail container, the container also, bear in the
prescribed form and manner

(a) a health warning;

(b) the tar group designation of the cigarettes.

(2) Nothing in this section or section 9 shall apply to anything
done in relation to cigarettes which are held

(a) in bond; or

(b) by a manufacturer of tobacco products,

for export from Hong Kong.

9. No person shall sell, offer for sale or possess for the purposes of
sale any cigarette tobacco unless the container thereof bears a health
warning in the prescribed form and manner.

10. (1) Any person who contravenes section 8 or 9 commits an
offence and is liable on summary conviction to a fine of $5,000.

(2) Any manufacturer of cigarettes or his agent and any wholesale
distributor of cigarettes who sells, offers for sale or possesses for the
purpose of sale any cigarettes to which section 8 applies which have on
their packet or retail container a tar group designation which having
regard to any determination under section 16 and the regulations, is
incorrect, commits an offence and is liable on summary conviction to a
fine of $5,000.

(3) Any manufacturer of cigarettes or his agent and any wholesale
distributor of cigarettes who sells, offers for sale or possesses for the
purpose of sale any cigarettes to which section 8 applies which have on
their packet or their retail container





(a)a brand name which indicates the cigarettes belong to a tar
group to which, having regard to any determination under
section 16 and the regulations, they do not belong; or

(b)a statement as to the amount of tar in the cigarettes which,
having regard to the regulations, would place the cigarettes in
a tar group other than that indicated by the tar group
designation on the packet or retail container or, as the case
may be, by the brand name,

commits an offence and is liable on summary conviction to a fine of
$5,000.

10A. (1) A person holding an office specified in the First Schedule
to the Customs and Excise Service Ordinance may without warrant
seize, remove and detain Tor the purpose of proceedings under this Part

(a)any packet or retail container of cigarettes or cigarette tobacco
which does not bear a health warning or, as the case may be, a
tar group designation, in the form and manner required by
section 8 or 9;

(b) the contents of such packet or container;

(e)any receptacle in which such packet or container is contained;

(d)anything which appears to that person to be evidence of an
offence under this Part.

(2) Subject to subsection (4), any article seized under subsection
(1) may be retained in the custody of the Commissioner of Customs and
Excise until either proceedings under this Part are completed or it is
decided that no such proceedings shall be brought.

(3) For the purposes of section 16 of the Dutiable Commodities
Ordinance (which relates to obstruction of a member of the Customs
and Excise Service) as read with section 46 of that Ordinance, any article
seized under subsection (1) shall be deemed to have been seized in
pursuance of a power conferred by that Ordinance.

(4) A magistrate may, on the application of the Commissioner of
Customs and Excise, order the forfeiture of any article mentioned in
subsection (1)(a), (b) or (e), whether or not any person is convicted of
any offence under this Part, on the grounds that an offence under this
Part has been committed in relation to such article or that such article
may not lawfully be sold or possessed for the purposes of sale in Hong
Kong:

Provided that the magistrate shall not order such forfeiture unless
he is first satisfied that all persons with an interest in such article have,
in so far as is reasonably practicable, had the opportunity of making
representations thereon to the magistrate or that no such persons can,
after reasonable inquiry, be found.





(5) Any article forfeited under subsection (4) shall be destroyed or
disposed of in the same manner as any article forfeited under section 48
of the Dutiable Commodities Ordinance, and the provisions of sections
49 and 50 of that Ordinance shall apply in relation to articles forfeited
under subsection (4) as they do to articles forfeited under the said
section 48.

(Added, 52 of 1983, s. 2)

PART IV

CIGARETTE ADVERTISING

11. (1) No person shall print or publish a cigarette advertisement in
a printed publication to which this section applies unless the
advertisement bears, in the prescribed form and manner

(a) a health warning;

(b) the tar group designation of the cigarettes advertised.

(2) This section applies to-

(a) any local newspaper;

(b)any printed document published or distributed in Hong Kong,
not being a newspaper or an advertisement published or
distributed for the purpose of display.

(3) Nothing in this section or section 12 shall apply in relation to a
cigarette advertisement in a printed publication

(a) being a local newspaper published-

(i) for the passengers of any airline or shipping company;

(ii) for the tobacco trade or as the 'in house' magazine of
any company engaged in that trade; (Replaced, 26 of 1984, s.
2)

(aa) being a local newspaper, other than a newspaper referred to in
paragraph (a), the circulation of which within Hong Kong

(i) constitutes not more than 20 per cent of its total
circulation; and

(ii) does not exceed such number as the Governor in
Council may from time to time specify by notice in the
Gazette; (Added, 26 of 1984, s. 2)

(b) in such circumstances as may be prescribed.

12. (1) No person shall-

(a) display;

(b) publish or distribute for the purpose of display,

any cigarette advertisement in writing or other permanent or
semipermanent form unless the advertisement has a health warning in
the prescribed form and manner.





(2) Nothing in this section shall apply in relation to a cigarette
advertisement

(a) [Deleted, 26 of 1984, s. 3]

(b) in or upon that part of the premises of any manufacturer
of tobacco or tobacco products or any dealer (whether
by way of wholesale or retail) in cigarettes or cigarette
tobacco which is used for the manufacture of cigarettes or
cigarette tobacco or for the purpose of dealing in cigarettes
or cigarette tobacco;

(c) [Deleted, 26 of 1984. s. 3]

(d) broadcast by television;

(e) of such other categories as may be prescribed.

13. (1) The Television Authority appointed under the Television Ordinance
may from time to time issue Codes of Practice relating to cigarette advertisements
broadcast by radio.

(2) Any Code of Practice issued under subsection (1) shall not be
inconsistent with any prescribed conditions relating to the broadcast
by radio of any cigarette advertisement.

(3) A Code of Practice issued under this section shall provide that
when a cigarette advertisement is broadcast by radio a health warning
shall also be broadcast in such manner and at such time as the Code
may specify.

(4) No person shall broadcast by radio a cigarette advertisement
which does not comply with a Code of Practice issued under this
section or fail to broadcast a health warning in the manner and at the
time specified in such a Code of Practice.

14. (1) For the purposes of this Part an advertisement is a cigarette
advertisement if it

(a)contains any express or implied inducement, suggestion or
request to purchase or smoke cigarettes or cigarette tobacco;
or

(b)relates to smoking in terms which are calculated, expressly or
impliedly, to promote or encourage the use of cigarettes or
cigarette tobacco.

(2) An advertisement which mentions the name or trade name of
any person associated with the marketing of cigarettes or cigarette
tobacco or a brand name of cigarettes or cigarette tobacco or any
pictorial device commonly associated therewith or which illustrates or
mentions smoking or cigarettes or cigarette tabacco or their packages or
qualities shall be deemed to be a cigarette advertisement unless the
contrary is proved.

(3) Notwithstanding subsection (2), no advertisement shall be
deemed to be a cigarette advertisement only because it uses the name





or trade name or a brand name of, or otherwise identifies, a person
associated with the manufacture or marketing of cigarettes or cigarette
tobacco as the sponsor of an event or as congratulating another person
or thing on an achievement of, or event relating to, such person or
thing.

is. (1) Any person who contravenes section 11(1), 12(1) or 13(4)
commits an offence and is liable on summary conviction to a fine of
55,000 and, in the case of a continuing offence, to a further penalty of
$500 for each day during which the offence continues.

(2) In any proceedings for a contravention of sectioin 11(1) it shall
be a defence for the person charged to prove that the advertisement to
which the proceedings relate was printed or published in such
circumstances that he did not know and had no reason to believe he
was taking part in the printing or publication thereof.

PART V

SUPPLEMENTARY

16. (1) The Government Chemist may from time to time analyse any
cigarette for the purpose of determining the tar group to which it
belongs for the purposes of this Ordinance and may publish the result
of any such analysis.

(2) The determination of the Government Chemist under
subsection (1) as published by him shall be evidence of the tar group of
the brand of cigarettes from which the cigarette analysed was taken
subject to such conditions or limitations as may be prescribed; and any
publication purporting to be a determination so published shall be
deemed to be such a determination unless and until the contrary is
proved.

(3) The power of a member of the Customs and Excise Service to
take samples of any goods to which the Dutiable Commodities
Ordinance applies conferred by section 11 (1)(d) of that Ordinance shall
extend to the taking of samples of cigarettes for analysis by the
Government Chemist for the purposes of this section.

17. [Had its effect.]

18. (1) The Governor in Council may make regulations for all or any
of the following matters

(a)prescribing anything required or permitted to be prescribed
under this Ordinance;

(b)prescribing the manner in which the tar group designation of
a cigarette is to be determined for the purposes of section 12;

(c)requiring notification of anything done by any person which
may be relevant to the tar group designation of cigarettes and
imposing penalties not exceeding $2,000 for a failure to
comply with such requirement;





(d)excepting any cigarette advertisement from the provisions of
Part IV either absolutely or subject to such exceptions as may
be prescribed; and

(e) for the better carrying into effect of this Ordinance.

(2) Subject to the regulations, the Secretary for Health and

Welfare may by order in the Gazette prescribe- (Aniended,
L.N. 14183)

(a)the form of any notice that smoking is prohibited, any health
warning or any tar group designation where the form is
required or permitted to be prescribed under this Ordinance;

(b)the manner in which any such notice, warning or designation
is to be displayed.
Originally 58 of 1982. 73 of 1982. L.N. 14/83. 52 of 1983. 26 of 1984. L.N. 314/82. Short title. Interpretation. (Cap. 104.) (Cap. 268.) (Cap. 115.) Prohibition on smoking in no smoking areas. Setting aside of no smoking areas. (Cap. 172.) Display of signs in no smoking areas. Powers exercisable in relation to persons smoking in no smoking area. Offences under Part II. Health warnings and tar group designation when cigarettes sold. Health warnings when cigarette tobacco is sold. Offences under Part III. Seizure and forfeiture. (Cap. 342.) (Cap. 109.) Cigarette advertisements in printed publications. Health warnings when cigarette advertisement displayed. Cigarette advertisements on radio. (Cap. 52.) Meaning of cigarette advertisement. Offences under Part IV. Evidence of tar group. (Cap. 109.) Regulations and Orders.

Originally 58 of 1982. 73 of 1982. L.N. 14/83. 52 of 1983. 26 of 1984. L.N. 314/82. Short title. Interpretation. (Cap. 104.) (Cap. 268.) (Cap. 115.) Prohibition on smoking in no smoking areas. Setting aside of no smoking areas. (Cap. 172.) Display of signs in no smoking areas. Powers exercisable in relation to persons smoking in no smoking area. Offences under Part II. Health warnings and tar group designation when cigarettes sold. Health warnings when cigarette tobacco is sold. Offences under Part III. Seizure and forfeiture. (Cap. 342.) (Cap. 109.) Cigarette advertisements in printed publications. Health warnings when cigarette advertisement displayed. Cigarette advertisements on radio. (Cap. 52.) Meaning of cigarette advertisement. Offences under Part IV. Evidence of tar group. (Cap. 109.) Regulations and Orders.

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