Introduction

Both second-hand smoke and tobacco smoke are hazardous, as they can cause many severe diseases such as heart diseases and cancers. Second-hand smoke contains more than 7,000 chemicals including cyanide, arsenic and at least 69 carcinogens. The concentrations of substances contained in second-hand smoke such as carbon monoxide, ammonia, benzene and hydrocarbons were found to be even higher than those in first-hand smoke. It is commonly known that any kind of exposure to second-hand smoke has a negative impact on our body, and causes a series of health effects on non-smokers even for being exposed for just a short period of time.[1][2][3] Some population groups are particularly susceptible to the increased risk of severe diseases due to inhalation of second-hand smoke (Chart 5.1).

Chart 5.1：Diseases / conditions of increased risk due to exposure to second-hand smoke

Article 8 of the FCTC states that “parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability”.[4] It requires the Parties to proactively adopt effective measures to protect people from exposure to tobacco smoke in (1) indoor workplaces; (2) indoor public places; (3) public transport carriers; and (4) in “other public places as appropriate”. WHO recommended that the Parties should adopt the most effective protective measure(s) against the harmful effects of second-hand smoke as long as there is evidence to manifest the existence of such harm.

Research shows that second-hand smoke is detectable from the vicinity of smokers up to a distance of 7 to 9 metres, and even farther in the downwind direction. Expanding statutory NSAs in public venues has been proved to be an effective way to protect the public from exposure to second-hand smoke and denormalise smoking behaviours.[5][6][7] Setting up NSAs in areas with a high pedestrian flow or long duration of stay can drastically reduce public exposure to second-hand smoke.

Experience outside Hong Kong

Across the globe, it is commonly seen that smoking bans are implemented in indoor public areas, but bans on outdoor smoking vary substantially. Common non-smoking outdoor areas include venues of healthcare, education, social service and community institutions or facilities. The following shows the outdoor smoking bans implemented in some regions

Chart 5.2：Outdoor smoking bans implemented in some countries/regions

A few countries, such as Japan and Singapore, have designated “no-smoking streets” with smoking areas. Studies have shown that these smoking areas are major sources of second-hand smoke in these “no-smoking streets” which limit the effectiveness of smoking bans in protecting pedestrians.[36][37] Given the long distance that second-hand smoke can travel, designating smoking areas in streets or pedestrian walkways may not achieve the intended effect of reducing public exposure to second-hand smoke effectively.

In some areas of Japan, administrative measures are implemented to prohibit smoking while walking on the streets, but not when smokers stand still on the streets. Such measures may serve to prevent walking smokers from causing burns to other pedestrians, especially children and people in wheelchairs, by their lit cigarettes out of safety concerns, but they do little to reduce emission of second-hand smoke by smokers, if there is no designation of NSAs and to rely on the ban on smoking while walking solely.[38][39] There is no evidence to show that a standing smoker emits less second-hand smoke than a walking one, while the ban on smoking while walking will not shorten the distance the second-hand smoke emitted by the smoker can travel. Therefore, in terms of reducing the harm of second-hand smoke to the public, it is more effective to designate NSAs and prohibit all kinds of smoking act than to prohibit smoking while walking on the streets.

Local situation

In Hong Kong, all indoor workplaces and public places, and outdoor areas of certain premises such as hospitals, schools, parks and bathing beaches, are statutory NSAs. According to the Smoking (Public Health) Ordinance, “indoor” includes any space having a ceiling or roof, or enclosed at least 50% of the total area on all sides, except for any window or door. One of the objectives for such requirements is to protect the public from exposure to second-hand smoke to the maximum extent as possible. The scope of NSAs has been extended to public transport facilities gradually in the past decades. Nevertheless, second-hand smoke exhaled by smokers has continued to affect the general public in crowded public places such as waiting areas of public transport. The current scope of statutory NSAs is listed in Part 1 of Schedule 2 to the Smoking (Public Health) Ordinance.

Chart 5.3：Scope of existing NSAs in Hong Kong

Despite the Government’s continued efforts in education and publicity, as well as enhanced enforcement efforts against smoking offences, the annual number of offences hovered at around 8,000 from 2013 to 2019 without any signs of reduction (the figures in 2020-2022 were slightly reduced, partly due to the COVID-19 pandemic). There is a need to expand the NSAs to safeguard the health of the non-smoking population, and ensure compliance with smoking ban by considering to impose legal liability on venue managers of tobacco-free premises.

Chart 5.4：Enforcement Statistics on Illegal Smoking (2013-2022)

THS Report No. 75 states that different percentages of respondents were exposed to second-hand smoke in the following places 7 days before the survey took place –

Chart 5.5：Percentages of persons aged 15 or above with exposure to second-hand smoke in outdoor public places 7 days before the survey

The statistics show that over 90% of the respondents were exposed to second-hand smoke on pedestrian walkways. Over half of the respondents were exposed to second-hand smoke at entrances/exits of buildings or facilities. As smokers cannot control the direction and distance of smoke they generated, it is necessary to expand the statutory NSAs to protect public health.

In general, public support for the expansion of statutory NSAs is patently obvious. Statistics show that only 18% of the respondents agreed that smoking ban should not be imposed on any of the options in the survey.

Introduction

We cannot solely rely on law enforcement agents to handle all the work on providing tobacco-free environment to the public for safeguarding health. Venue managers of premises with NSAs are also responsible for proactively safeguarding public health. According to the guidelines for implementation of Article 8 of the FCTC, effective tobacco control legislation should impose legal liability and penalty on the concerned business establishments and smokers for their non-compliant acts. The relevant legislation should require the owner, manager or other persons in charge of the premises to provide tobacco-free environment and clearly state the actions that have to be taken, which include –

• post clear signs at entrances and other appropriate locations indicating that smoking is prohibited;
• remove any ashtrays from the premises;
• supervise the observance of rules; and
• take reasonable measures to discourage individuals from smoking in the premises

Experience outside Hong Kong

Different regions have implemented measures to require venue managers to fulfill the responsibility of providing tobacco-free environment –

Local situation

Under the prevailing legislation, since venue managers do not have to bear any legal liability for failing to provide tobacco-free environment for the users, the venue managers may consider themselves to have no obligation to impose smoking ban in the tobacco-free premises. Some shop owners may turn a blind eye to illegal smoking activities or even aid and abet their customers to smoke in statutory NSAs, so as not to affect their revenue. Such behaviour may constitute misconduct stated under Section 89 of the Criminal Procedure Ordinance for aiding, abetting, counseling or procuring the commission by another person of an offence.

The Smoking (Public Health) Ordinance stipulates that no person may do a smoking act in a NSA. Managers of statutory NSAs can require a person to cease the smoking act after indicating to the person that he/she is doing a smoking act in a NSA. If the person is not cooperative and fails to cease the smoking act, the manager can ask him/her to leave the statutory NSA or require him/her to provide his/her name, address and documentary proof of identity, as well as to seek assistance from the police as necessary. Nonetheless, there is no criminal liability under the prevailing legislation on venue managers if they do not exercise their legal power to stop smoking act in premises under their management.

In recent years, some staff of restaurants and bars were found to have provided customers with waterpipe apparatus and tobacco for consumption in statutory NSAs. TACO proactively mounted operations against such behavior, and those who aided and abetted smoking offences were prosecuted and convicted. The relevant licensing authorities were also notified of the convictions by TACO, for reviewing the licence renewal applications by those restaurants and bars.

After conducting a direct investigation of the mechanism for handling smoking offences in 2017, the Office of the Ombudsman recommended that the Government should make reference to overseas experience and consider reviewing the existing legislation, such as to impose legal liability on those venue managers who acquiesce to or condone illegal smoking in their premises or to add tobacco control provisions in the licensing conditions of the relevant venues.

Introduction

To ensure compliance with the smoking ban in statutory NSAs and protect the public from second-hand smoke in the NSAs, the Fixed Penalty (Smoking Offences) Ordinance was enacted in 2009. Authorised law enforcement agents may issue fixed penalty notices of $1,500 to offenders who performed smoking act in statutory NSAs. The penalty level has remained the same since the Ordinance was enacted on 1 September 2009.

The fixed penalty notice system is more efficient than summary conviction for handling smoking offences. Apart from the Tobacco and Alcohol Control Inspectors from the DH as well as police officers, the Ordinance also empowered authorised officers of the Leisure and Cultural Services Department, the Food and Environmental Hygiene Department and the Housing Department to issue fixed penalty notices to offenders. Any person who commits an offence should settle the fixed penalty notice in 21 days or else he/she may subject to a higher penalty level.

Experience outside Hong Kong

Penalty for smoking offences in other countries –

Local situation

The TACO issued 6 580, 7 700 and 6 290 fixed penalty notices in 2020, 2021 and 2022 respectively.

Since the enactment of the Fixed Penalty (Smoking Offences) Ordinance in 2009, the penalty level has not been adjusted and has remained at $1,500. Apart from issuing fixed penalty notices, depending on the actual situation, the law enforcement agents may also consider prosecuting the offenders with reference to the relevant provisions of the legislation. An offender is liable on summary conviction to a fine of $5,000.

According to the statistics from the Census and Statistics Department[43], the median local household income increased from $18,000 in 2009 to $29,000 in the fourth quarter of 2022. The deterrent effect of the fixed penalty notice might be reduced due to the increase in local household income. Indeed, the Government has also proposed to increase the fixed penalty level for similar offences, such as littering, recently. An appropriate fixed penalty level with sufficient deterrent effect is crucial to the tobacco control work in Hong Kong.