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Legislative Council

Tougher Laws On Way for Smokers, Says Health Chief

Dec 11th, 2008
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Anita Lam, SCMP – Dec 11, 2008

The smoking ban will be expanded in the second half of next year to include covered public transport interchanges, along with a fixed penalty system for smokers who flout rules.

Open-air interchanges would be the next target, the health minister said yesterday.


But bus drivers said there was nothing they could do to enforce the rules apart from advising passengers, who are often seen smoking in enclosed interchanges, where smoking is already banned.

Speaking in the Legislative Council, health minister York Chow Yat-ngok said his ultimate goal was to establish a smoke-free city, and he would also consider raising the import tax on tobacco.

He said government statistics showed that the number of smokers aged between 15 and 19 had fallen from 3.5 per cent in 2005 to 2.4 per cent recently.

At the same time, however, the number of cigarettes sold that incurred duty jumped 9.1 per cent, from 3.44 billion cigarettes between October 2006 and September last year to 3.76 billion a year later.

Dr Chow said this could be due to an earlier change in policy that cut the number of cigarettes that incoming visitors could bring from six packs to three.

“Another reason may be that the hard work of the Customs Department in tackling smuggled cigarettes is working so people need to make the purchase via normal channels.”

A fixed penalty of HK$1,500 for a smoking offence is expected to come into effect in the latter half of next year, as the Department of Health is taking the final steps in formulating an administrative and information system to implement the law.

“We hope the new penalty system can come out at the same time when public transport interchanges are designated no-smoking areas,” Dr Chow said.

Kowloon Motor Bus said it would advise drivers to warn commuters if they received complaints, but a spokeswoman did not say if it would encourage drivers to report cases to the Tobacco Control Office.

A Post employee saw a woman smoking openly inside the Lam Tin bus interchange – which is already classified a smoke-free area as it is largely indoors – without being challenged.

Chung Chung-fai, staff union chairman at New World First Bus, said giving warnings was probably the best option as few drivers wanted trouble.

Even if they informed the Tobacco Control office, “by the time they get through, the commuters will have long gone”.

Thousands Risk Lung Damage in Smoke-filled Restaurants

Dec 10th, 2008
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Paul Mozur, Hong Kong Standard – Wednesday, December 10, 2008

As many as 16,000 employees in 966 locations exempted from the smoking ban are at serious risk of lung and artery damage.

University of Hong Kong chair professor in community medicine Anthony Hedley said yesterday a new study shows the concentration of small particulates at restaurants where smoking is permitted is 300 percent higher than a in a non- smoking restaurant and about 30 times the World Health Organization limits for small particulates.

Employees exposed to this air for periods longer than two-and-a-half years could lose as much as 16 percent of lung function, he said.

“This is very serious. The lungs are being injured and the smoke does damage to arteries, increasing the likelihood of heart disease,” he said. “If nothing changes, people will die because of the conditions in these places.”

The study of 204 non-smoking restaurant staff, completed by Hedley and a team from the HKU School of Public Health, also showed that ventilation at smoking rooms and terraces is not effective.

“Many of the waiters who serviced smoking terraces still had twice the cotinine [an indication of amount of smoke inhaled] of those in restaurants without smoking. It would take a tornado to blow the smoke away from some of these places,” he said.

Sarah McGhee, of the HKU Department of Community Medicine, also stressed reports that revenue would be lost from a complete smoking ban have little supporting evidence.

Hedley expressed regret that legislation left many of the employees affected with few alternatives. He looks forward to June 2009 when exemptions are due to expire.

Most unnerving, he added, was a recent argument from catering and tobacco industries in support of smoking rooms.
 
“This is a red light and would be a disaster. These rooms are incredibly damaging to people who use them and clean them, and [the rooms] affect the air quality in the vicinity,” he said.

“Hong Kong is dragging its feet. It is time the government stopped trading workers’ health for vested interests.”

Stick By Full Smoke Ban, Urge Academics

Dec 10th, 2008
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Loretta Fong and Nick Gentle, SCMP – Dec 10, 2008

Academics urged the government yesterday not to extend the grace period for full imposition of the smoking ban and not to allow bars to get around it with smoking rooms.

Their call came after a survey showed the lung function of non-smokers working in places where smoking is still allowed had deteriorated compared to those in venues where the ban is already in force.

Anti-smoking campaigner Anthony Hedley described the findings as “very important indicators of harm to current and future health”.

Places such as nightclubs, bars and mahjong parlours, which admit only people over 18, were exempted from the initial phase of the ban that took effect in January in most indoor public venues as well as parks and beaches. The grace period is due to end in the middle of next year.

Bar owners have claimed the ban would be “catastrophic” for their businesses in the shrinking economy and have called for the grace period to be extended or separate smoking rooms to be allowed – a proposal that the government is studying.

In the survey, results of which were released yesterday, University of Hong Kong researchers interviewed 157 non-smoking workers in smoke-free Chinese restaurants and cafes between February and June and compared them to 47 non-smokers who had worked in exempted bars and restaurants for an average of seven years. Interviewees took lung function tests and urine tests for tobacco chemicals. Of those aged 18 to 65, the estimated reduction in their lung function was 14 per cent, while for those aged 30 to 65 it was 22 per cent.

The difference in lung functions for the 18-65 group between exempted and smoke-free venues was 6.3 per cent and for those aged 30 to 65, 10.9 per cent.

Dr Hedley, professor of community medicine at the University of Hong Kong, said other scientific studies had shown that damage to the lungs posed “a serious risk for both acute and chronic disease”.

He said reduced lung function was also a strong predictor of reduced life expectancy. Even if workers did not have to serve food and drinks in smoking rooms, he said they still had to clean them and would suffer “additional hits” from “the off-gas from the furniture”.

Professor of public health Lam Tai-hin said people might show no symptoms of early lung problems, but in serious cases would develop breathing difficulties and other ills.

A bar owner said the industry was facing tough times and a complete smoking ban could be catastrophic. “The recession is starting to hit and bars are already beginning to close,” the owner said.

A government spokesman said a report on the feasibility of smoking rooms would be put to the Legislative Council later.

HKU Study Shows High Health Risks for Catering Workers (and Bar Patrons) in Venues Exempted from the Smoking Ban

Dec 9th, 2008
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Department of Community Medicine, School of Public Health, The University of Hong Kong – December 9, 2008

Secondhand smoke
Secondhand smoke (SHS) is a dangerous poison. Major studies in Hong Kong have shown how breathing SHS causes a serious injury to the heart, other blood vessels and lungs. SHS kills over 1,300 people a year in Hong Kong. However, in 2006, the Government and legislators supported exemptions from the Smoking (Public Health) (Amendment) Ordinance for “qualified premises” selling alcohol and food, until June 2009.

The Study
A new survey conducted by a team from the Department of Community Medicine, School of Public Health, The University of Hong Kong; a biophysicist from Repace Associates, a secondhand smoke consultancy in Maryland USA, and Professor Neil Benowitz’s laboratory in the University of California, has examined the exposure to tobacco smoke and the health of catering workers in both smoke-free and exempted premises.

157 non-smoking workers in smoke-free Chinese restaurants and Char Charn Ting (Hong Kong style café) and 47 non-smokers who worked in exempted bar/restaurants were examined by interviews, lung function tests and analysis of urine samples for tobacco chemicals.

Results of the study

1. Air pollution level

  • The level of fine particulate pollution (PM2.5) in exempted venues was four times as high as (300% higher than) the level in the smoke-free premises.
  • The indoor pollution was
    o slightly lower than outdoor pollution for smoke-free venues
    o over 100% higher than outdoor pollution for exempted venues

2. Toxic substances in urine of workers

  • Cotinine is a breakdown product of nicotine which can be measured in urine. It is a marker in the human body for other toxic substances from tobacco smoke which cause heart disease, stroke, cancers and other health problems.
  • The research team found that cotinine in the urine of workers was
    o highest in those working in exempted hospitality venues
    o also raised in workers serving smokers on patios and terraces
    o raised in many non-smoking workers who we found were exposed to tobacco smoke at work from their co-workers during break periods
  • Catering workers who served smokers had higher levels of tobacco chemicals in their urine than those in other jobs.

3. Lung function in catering workers

The level of indoor air pollution, as measured by fine particulates, was strongly associated with reduced lung function in catering workers:

  • In the group of workers in exempted venues who successfully completed a lung function test, the average level of PM2.5 was 261 microgrammes per cubic metre (μg/m3), and in smoke-free venues was 61 μg/m3. All workers show declining lung function with increasing PM2.5 levels. The research team estimates that the average difference in lung function between workers in exempted and smoke-free venues on the day of the survey is 6.3% for ages 18-65 years; for older workers (aged 30-65) the estimated average difference is much higher at 10.9%. At the average level of PM2.5 in exempted venues the estimated overall reduction in lung function is 14% for ages 18-65 and up to 22% for ages 30-65.
  • We regard these reductions in lung function as very important indicators of harm to current and future health. Other scientific studies have shown that damage to the lungs carries a serious risk of both acute and chronic disease including bronchitis, pneumonia and chronic obstructive pulmonary disease (COPD). Reduced lung function is a strong predictor of reduced life expectancy.

4. Health risks:

  • More workers in exempted venues than in smoke-free venues perceived that the poor indoor air quality increased their health risks:

Workers who said they were always bothered by smokers near them had lower urine cotinine levels than those who were seldom bothered. This apparent reduction in exposure, from action to protect themselves from smoke, was much greater in workers in non-smoking venues compared with those in exempted venues.

  • In 2001, we estimated the average increased risk of fatal heart disease and lung cancer in Hong Kong catering workers was 1 in 33 (3%) and up to 1 in 10 (10%) for the highest (top 10%) exposures. For those workers in catering venues which were exempted under the 2006 Amended Ordinance, this increased risk will remain unchanged for 2.5 years (from 1.1.2007 to 30.6.2009). The result of this unchanged risk will cause serious life-long harm to the health of many of them.
  • This study clearly shows that indoor air quality in Hong Kong is generally extremely poor and very much worse when smoking is permitted.

o In non-smoking venues the average levels of fine particulates (PM2.5) in our spot tests (61 μg/m3) were 240% above the World Health Organization (WHO) 24 hour guideline of 25 μg/m3 and 610% above the annual WHO guideline of 10 μg/m3.
o In exempted catering premises, the extremely high levels of particulates and other tobacco chemicals we measured will cause serious harm to the health of workers, both smokers and non-smokers.

Recommendations:

  • All exemptions of premises from the smoke-free workplace policy creates a serious health risk for workers and should be rescinded as a matter of urgency. While the HKSAR government used the research evidence on the serious harm caused by SHS to promote public acceptance of smoke-free policies it should not have introduced legislation which perpetuates and increases catering workers exposure to SHS.
  • The introduction of “smoking-rooms” currently being argued for by the catering and tobacco industries should not be permitted for the following reasons:

o Smokers suffer additional health problems when subjected to intensive exposures to SHS.
o We have previously shown in Hong Kong that smokers who inhale SHS from other smokers experience higher risks of lung disease.
o Smoking rooms in catering and licensed facilities will create an intense source of pollution which will contaminate surrounding air. Existing smoking rooms in Hong Kong, such as those in the Airport Authority, are poorly managed and create health risks for those who use them or have to clean them.

  • These facts on the harm caused by SHS should not be ignored by the Hong Kong health authorities (the Food and Health Bureau and the Department of Health) in formulating future policy.
  • The government should focus on improving its compliance with the WHO Framework Convention on Tobacco Control rather than spending public money on smoking rooms.

Professor Sarah McGhee, a leading member of the research team said, “The study shows that the occupational health impacts of smoking in catering facilities must outweigh any other argument for the continuation of exemptions or the introduction of smoking rooms. There was no evidence anywhere in the world that the food and licenced trade had suffered any economic downturn on top of existing background trends from smoke-free policies.”

Dr Chit Ming Wong, a researcher leading several environmental health projects of the Department of Community Medicine, The University of Hong Kong emphasized, “The evidence of impaired lung function in catering workers had serious implications for their current and future health. All exemptions should end, including smoking patios and terraces, which are a health risk for waiters and others in such places.”

Professor Tai Hing Lam, director of the Public Health Research Centre, School of Public Health, The University of Hong Kong said, “All sectors of the community must now be involved in tobacco control and particularly the elimination of involuntary exposures to tobacco smoke. Tobacco tax should be increased to support smoking cessation in Hong Kong to reduce illness and premature deaths from smoking and secondhand smoke.”

Professor Anthony Hedley said “We thank the government for supporting the study. We hope that government leaders would take careful note of the study results and adopt a more pro-active and consistent approach to the incorporation into policy and legislation of the overwhelming scientific evidence on health risks of SHS. The new study is an important demonstration of the need for accountability in all public health and environmental regulations.”

For media enquiries, please contact Ms Winnie Lam (Tel: 2809 5102 / 9107 1676) or Mr Terence Poon (Tel: 2819 9305 / 9316 6267) of The University of Hong Kong Li Ka Shing Faculty of Medicine.

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16,000 At Risk From Smoking Clientele: Study

Dec 9th, 2008
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Hong Kong Standard – 9 December 2008

As many as 16,000 service sector employees in Hong Kong face serious health hazards as they work in bars that have been exempted from adhering to a territory-wide smoking ban, according to the latest study by University of Hong Kong researchers.

The study also warned that staff who are exposed to cigarette smoke over several years are in danger of losing between 10 percent to 30 percent of their lung function.

Anthony Hedley, chair professor of community medicine at the university, said the city should impose a complete smoking ban.

Allowing smoking in specific rooms and terraces of restaurants and bars were not practical as they harmed workers health, Hedley said.

Tobacco Hike What Doc Orders

Dec 9th, 2008
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Adele Wong, The Standard – Tuesday, December 09, 2008

An anti-smoking activist has called on the government to drastically increase tax on cigarettes since they cost less in real terms today than seven years ago when the tax was last raised.

Professor Judith Mackay, director of the Asian Consultancy on Tobacco Control and senior policy adviser to World Health Organization, said a higher tobacco tax will help cut the number of smokers.

“Taxation is the single most effective measure to reduce smoking,” Mackay said, citing overseas experience showing a relationship between higher tax and a decrease in sales.

“The Hong Kong government thinks education is the key,” Mackay said, adding that she disagreed.

“If taxes are raised to at least 75 percent of the retail value as opposed to the current 50-plus percent, it will have a big impact,” Mackay said.

“The last tax increase in Hong Kong was in 2001, when it was raised by only 5 percent. Thus cigarettes are becoming cheaper in real terms, year by year. It is no surprise that consumption is rising in Hong Kong, in spite of all our other actions.”

Mackay credited Hong Kong for being one of only about 20 places to insist on pictorial warnings on cigarette packets. But it is now time to go further and push for plain packaging carrying nothing but the name of the product and a warning, stripping it of any advertising appeal.

“Several countries are actively considering this,” Mackay said. “[We should push for] Hong Kong to be the first.”

Mackay said Hong Kong should also be meticulous and careful when deciding on smoking regulations.
In the past some lawmakers pushed for extensions and exemptions to the smoking ban implemented in restaurants in 2007, resulting in an uneven playing field and chaos.

Mackay was recently given approval by the Clinton Global Initiative for a Hong Kong- based project aimed at providing corporate incentive programs to migrant workers in China who demonstrate good health habits.

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Implement Full Smoking Ban

Oct 15th, 2008
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SCMP – Updated on Oct 15, 2008

Imperfect laws always end up causing havoc (“Bars win in smoking-ban case”, October 9).

Instead of a simple smoking ban, as successfully implemented in restaurants in 2007, some Legco members pushed for extensions and exemptions in the indoor areas of bars open to those aged 18 and above, mahjong parlours and clubs, commercial bathhouses, massage establishments and nightclubs.

This was further complicated by clauses as to whether food was served and in what amount. There has been considerable confusion and challenges to this law, never mind workers continuing all the time to be exposed to second hand smoke. The health lobby always supported a complete ban to establish a level playing field, to aid implementation and to protect workers’ health.

One hundred and sixty countries have now ratified a WHO treaty that states: “Parties recognise that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability.”

Why did Legco not follow this mandate?

Virtually every study done on the introduction of complete smoke-free areas in restaurants and bars shows that such bans are good for the health and the wealth of establishments.

Legco should bring forward the date of a ban in the premises given exemptions and immediately make them smoke-free.

Dr Judith Mackay, director, Asian Consultancy on Tobacco Control

Bills Committee on Fixed Penalty (Smoking Offences) Bill

May 3rd, 2008
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Department of Community Medicine & Unit For Behavioural Sciences Submission to Legco Bills Committee 3rd May 2008

25 April 2008

Legislative Council Secretariat
Legislative Council
Hong Kong

Dear Sirs

Re: Bills Committee on Fixed Penalty (Smoking Offences) Bill

We strongly support the introduction of fixed penalties for smoking for the following reasons:

  1. The fixed penalty is easy and relatively inexpensive to enforce.
  2. It is easily understood by all members of the public.
  3. It sends an immediate and clear message to smokers that their behaviour is harmful to others.
  4. It sends a message to young people that smoking is undesirable and thus deters them from starting to smoke.
  5. It shows non-smokers and workers that the Government is serious about protecting their health.
  6. Existing fixed penalties for other offences are acceptable to the public and are effective.

For these reasons we consider that the Government should not delay in implementing this bill.

Yours sincerely
________________________

Dr SM McGhee
Tobacco Control Research And Policy Unit
Department of Community Medicine
School of Public Health

Asian Consultancy On Tobacco Control

May 3rd, 2008
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Smoking (Public Health) Ordinance
Submission to Legislative Council Bills Committee on Fixed Penalties

Hearing: 3rd May 2008

27 April 2008

Dear Convenor and Members of the Bills Committee,

We support the introduction of the Fixed Penalty system as a good move by the Administration.

In other countries where a Fixed Penalty system was introduced, there has been no real need to argue the rationale for fixed penalties as:

a) The health hazards of second-hand smoke are widely known.
b) Countries that have legislation on second hand smoke enjoy high compliance rates.
c) Fixed penalties are easy and straightforward to implement; and
d) Hong Kong has other examples of fixed penalties, which work smoothly.

ASH Scotland (where fixed penalties are already in place) writes: “Fixed penalties are applied to other offences such as minor driving & parking offences or infringement of litter laws and are already widely accepted as a penalty measure and alternative to court proceedings. There is indeed an issue with capacity amongst enforcement officers and the fixed penalty system was viewed as quick and straightforward to implement, and fair since the law was well publicised.”

World Health Organisation has pointed Hong Kong to Article 8 of WHO Framework Convention on Tobacco Control (to which Hong Kong, through China, is a party) on Protection From Exposure to Second-Hand Tobacco Smoke.

WHO has the following recommendations related to penalties:

  • WHO encourages countries to use on-the-spot fines for breaches to save time and money in the prosecution process.
  • The legislation should specify fines or other monetary penalties for violations.
  • Penalties should be sufficiently large to deter violations or else they may be ignored by violators
  • Penalties should increase for repeated violations and should be consistent with a country’s treatment of other, equally serious offences
  • Legislation should be simple, clear, enforceable and comprehensive

WHO will be submitting further to the Hong Kong Legislative Council on this issue.

I will be happy to answer any questions on 3 May 2008.

Yours sincerely,

Dr Judith Mackay, SBS, MBE, JP, FRCP(Edin), FRCP(Lon)
Director, Asian Consultancy on Tobacco Control

Appendix:

The Conference of the Parties to the WHO Framework Convention on Tobacco Control, the WHO International Agency for Research on Cancer, the US Surgeon General and the United Kingdom Scientific Committee on Tobacco and Health all concur that secondhand smoke exposure contributes to a range of lethal diseases, including heart disease and several cancers. For example, second-hand smoke exposure increases the risk of coronary heart disease by 25–30% and the risk of lung cancer in non-smokers by 20–30%1 (WHO, MPOWER, 2008). Small children whose parents smoke at home have an increased risk of suffering lower tract respiratory infections and otitis media.2,3 SHS has also been linked to an increase in the number and severity of asthma episodes in asthmatic children.4 There is also evidence that SHS increases the risk of Sudden Infant Death Syndrome (SIDS).5

All people have the right to breathe clean air. Research clearly shows that there is no safe level of exposure to second-hand smoke. For that reason implement 100% smoke-free environments by law is the only scientifically proven way to protect people from SHS. In countries where strong smoke-free legislation has been enacted, the law must be implemented and enforced in a way that makes it a reality in daily life. To facilitate implementation the law should clearly identify offences, penalties and breaches (WHO, Building Blocks for Tobacco Control: A Handbook, 2004). The Conference of the Parties to the WHO FCTC also agrees that penalties should be plainly defined stating that, “legislation should specify fines or other monetary penalties for violations.”6

Penalties should serve as a deterrent and should be greater than any direct financial benefit the offender realizes from the violation, and should be at least equal to the cost of enforcement. Generally, penalty levels must be determined in the context of the penalties a jurisdiction imposes under its other laws. It is important that these sanctions be perceived by the effected parties and the public as proportionate to the offence. This purpose can best be achieved with a graduated penalty structure. Under many laws, for example, an offender’s first violation results only in a warning notice. Penalties may increase for each subsequent offence (WHO, Tobacco Control Legislation: an introductory guide, second edition, 2004).

While a graduated penalty structure is an effective practice, WHO also encourages countries to use on-the-spot fines for breaches to save time and money in the prosecution process. In administering such fines, enforcement officers must have clearly defined powers of enforcement, including the authority to issue fines (WHO, Building Blocks for Tobacco Control: A Handbook, 2004).

1 U.S. Department of Health and Human Services. The health consequences of involuntary exposure to tobacco smoke: a report of the Surgeon General. Atlanta, U.S. Department of Health and Human Services,
Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for
Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006
(http://www.surgeongeneral.gov/library/secondhandsmoke/ report/fullreport.pdf, accessed 5 December
2007).
2 Strachan DP, Cook DG. Parental smoking and lower respiratory illness in infancy and early childhood.
Thorax 1997, 52:905–14.
3 California Environmental Protection Agency and Office of Environmental Health Hazard Assessment.
Health effects of exposure to environmental tobacco smoke. California Environmental Protection Agency, 1997.
4 Cook DG, Strachan DP. Parental smoking and prevalence of respiratory symptoms and asthma in school age children. Thorax 1997, 52:1081–94
5 Anderson HR, Cook DG. Passive smoking and sudden infant death syndrome: review of the epidemiologic evidence. Thorax 1997, 52(11): 1003–9
6 World Health Organization. Conference of the Parties to the WHO Framework Convention on Tobacco
Control (http://www.who.int/gb/fctc/PDF/cop2/FCTC_COP2_17P-en.pdf, accessed 25 April 2008)

Clear the Air Submission to Legco Bills Committee

May 3rd, 2008
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Clear the Air Submission to Legco Bills Committee 3rd May 2008

Dear Sir,

Clear the Air considers the introduction of the Fixed Penalty system is a good move by the Administration.

We also consider that prior to its commencement, Cap 371 should receive amendments:

  1. Onus on licensees of restaurants , bars, mahjong centres, game centres, night clubs etc. In overseas locations where effective anti smoking laws are in place such as UK, the onus to prevent smoking taking place lies with the person in charge of the premises. We cannot see why this is not the case in Hong Kong. The licensees would then pay more attention to preventing their customers from smoking if they knew they would also receive a ticket. To save the hassle of having a separate FPN the law could mandate licensees receive 2 tickets for a first offence, three for a second offence etc and loss of licence to operate the premises on a ‘three strikes and you are out’ basis. Licensees have the legal obligation not to serve alcohol to intoxicated persons and we see no reason why they cannot be obliged to enforce non smoking in their premises also. Please see UK legislation at the addendum for your consideration.
  2. Smoking in vehicles when other persons , children or animals are present. It is the intention of anti smoking legislation to protect innocent workers and parties from the toxic passive cancerous poisons. An enclosed vehicle has one hundred times more concentrated poisons (studies available) than a pub prior to the smoking ban. The law already bans smoking in public and Government transport and should be amended to protect both human and animal passengers in all motor vehicle cabs.http://www.opsi.gov.uk/si/si2007/uksi_20070760_en_1
  3. Tobacco tax. If far fewer people smoked it will be easier to enforce the Fixed Penalty system ; i.e. prevention rather than enforcement. The WHO and World Bank state clearly that the most effective way to prevent youth smoking is by tobacco tax increase to be at least 70% of the sales price. The HK$ 16 per 20 sticks excise tax has not been increased here since 1999 and after adjustment for inflation should be at least $25 – $ 30 per pack tax to have the required effect of preventing youth smoking and reducing adult smoking. University of HK studies show 50% of local male smokers aged 35-69 will die from tobacco related illnesses here with resultant costs on local medical facilities and loss of productivity . A HK Department of Community Medicine study shows the cost of smoking including loss of life to the community at 25 times the yearly excise tax and we consider the Ombudsman should task the Financial Secretary for not increasing the tobacco tax and reducing this phenomenal and totally preventable loss. Indeed the Legco Brief extract below says it all and we concur:

    ” Economic Implications 32. With strengthened enforcement powers, the compliance rate with the statutory smoking ban should be higher. Public exposure to second hand smoke in statutory no smoking areas would also be reduced. Some smokers may choose to quit smoking and some may reduce their daily consumption of cigarettes or other tobacco products. This should contribute towards better health of the local population, with intangible benefits on productivity and also saving in medical costs which would otherwise be incurred by smoking-related diseases. Sustainability Implications 34. In line with the sustainability principle of pursing policies which promote and protect the physical health of the people of Hong Kong, the proposal may encourage more smokers to quit or reduce their consumption of tobacco products, thereby improving the health conditions of the general population of Hong Kong.”

  4. Overseas studies by experts at Stanford University have shown the inherent dangers of high levels of passive sidestream smoke emanating from smokers gathered around entrances to buildings. Legislation is required to prevent people gathering near building entrances. The fewer legal places they have to smoke, the more people are likely to quit for the betterment of Hong Kong’s overall productivity and reduction in health care costs.http://news-service.stanford.edu/news/2007/may9/smoking-050907.html
    http://www.tobaccocontrol.bmj.com/cgi/reprint/9/1/98.pdf
    http://www.repace.com/pdf/OTS_FACT_SHEET.pdf
  5. Hong Kong’s first year of the smoking ban. Clear the Air anticipated the Financial Secretary’s inaction as regards tobacco tax in the 2008 budget and as can be seen below there is a list of penalties provided by the Customs Department Task Force 3 weeks before the budget speech. The Customs Department reply is clear. Too bad the Financial Secretary did not evidently consult them before making, LC Paper No. CB(2) 1759/07-08(04) or rather not making a decision to increase taxation on tobacco. Please ask him what expert evidence he obtained that smuggling will increase here if he increased tobacco tax. Smuggling can only occur with the direct complicity of the Tobacco companies and again damning proof in their own words can be found in the tobacco company Legacy documents online. Major punitive penalties can be levied on the source manufacturer of any such products as happened in the EU and which resulted in massive long term settlements by the tobacco companies with the EU. The Financial Secretary’s statement that increasing tax will result in increased smuggling is without merit and flawed and remedial urgent action is required on his part. HK Customs Department Quote :

    “The illicit cigarettes cases effected by the department in 2007 was down 41% when comparing with 2006, whereas the illicit cigarettes seized in 2007 had increased by 39.45 million sticks when comparing those seized in 2006.It was because there were a number of cases involving substantial amount of illicit cigarettes (under transhipment) intercepted by Customs officers at the container port. The total illicit cigarettes seized in 2007 were 111.26 million sticks.”

    Without replacement (youth) smokers the tobacco companies are dead as their current customer base is dying off at a rate of 7,000+ per year here. In a pre-budget interview with the HK Standard , the head of COSH stated that there are almost 16,000 smokers aged between 15 – 19 years old in Hong Kong, but there is only one youth Quit-line at HKU capable (in Cantonese) of handling 400 applicants. Before the Fixed penalty scheme is implemented it is most important that a competent cessation service be already in place to handle the expected numbers of addicts wishing to give up their habit providing free NRT paid for by the tobacco tax funds. Please see Addendum for UK information on this.

Overseas Comparison

The UK taxation on cigarettes is $ 62 a packet and there was already in place to enhance the UK smoking ban effective July 01 2007, NRT therapy and adequate Quit-lines. UK smoking rates have accordingly decreased 4% since the comprehensive ban commenced in July 2007. Almost 25% of 16-24 year old smokers and 21% of 25-34 year olds managed to give up, compared to just 4% of 45-54 year olds and 7% of 55-64 year olds. There are no smoking exemptions in UK workplaces and high tobacco taxation; hence the success of their ban.

Conversely in Hong Kong from January 01 to December 31st 2007 , the first year of the new anti smoking legislation, the number of Duty Paid cigarettes sold here increased by an incredible 163,990,000 sticks. In 2006 pre smoking ban, there were 3331.74 million duty paid cigarettes sold in Hong Kong; in 2007 after the emasculated smoking ban 3495.73 million duty paid cigarettes were sold here. The Government reaped $ 2.834 billion in tobacco tax in 2007 but plied next to nothing into smoking prevention, multi lingual Quitlines and free NRT therapy and the availability of same outside of working hours. We do not consider the increase is due to tourists buying cigarettes here since they will carry Duty Free tobacco with them.

This dismal failure shows clearly that the combined effects of:

a) no tobacco tax increase hence affordable tobacco prices even for youth
b) smoking exemptions in bars, restaurants claiming to have more liquor sales than food sales, mahjong parlors and night clubs reflect a failed policy.

This Hong Kong example will soon feature in an article in the Journal ‘Tobacco Control’ written by Professor David Simpson , Director International Agency on Tobacco and Health , showing how we have regressed rather than advanced as a result of our flawed anti smoking system.

Comments on Legislative Brief
LEGISLATIVE COUNCIL BRIEF FIXED PENALTY (SMOKING OFFENCES) BILL 2008

  1. “We do not propose to deal with other offences provided for by the Ordinance through an FPS, for example, the sale of tobacco products to persons under 18 years of age or the display of tobacco advertisement, as these may involve proof of complicated facts of the case in prosecution.” Clear the Air considers that:
    a) all tobacco retailers in Hong Kong should be licensed. It is imperative our under-aged youth cannot buy tobacco products .
    b) that any licensed vendor must check the Identity card of any youth attempting to purchase tobacco
    c) enforcement of penalties for selling to under-aged persons including loss of the license to sell tobacco

    We cannot see how ‘complicated proof’ can be involved. Either the youth had an ID card showing he/she was over 18 or not.

  2. “If the person to whom an FPN is issued wishes to dispute liability, he may do so by notifying the enforcement authority of his intention in writing. A summons will then be served on him. ”

    The Fixed Penalty Traffic Contraventions Ordinance Cap 237 was developed in Hong Kong to decriminalize parking offences, making the transgressions into contraventions of civil law whereby the owner of the vehicle can either admit or deny liability. It is the most successful system of its kind worldwide. A computer generated notice of the offence is sent to the registered address of the vehicle’s registered owner within a few days of the contravention. The owner , if not the driver, now has notification of the offence and can either pay the fee , decide to fight the case in court or ignore the notification. If the owner does not arrange payment within 3 weeks of the contravention a computer generated Summons to Defendant is issued and sent to the registered address of the vehicle owner. If the owner fails to attend court the case is heard ex parte in absentia and a judgement made including costs. If the owner fails to pay such fees his vehicle can be impounded and will not be released till he pays all outstanding charges. If he does not pay the vehicle can be auctioned.

    Clear the Air suggests that within a few days of the offence a computerized demand for payment notice be sent to the registered address of the offender as listed in the Government Registration of Persons / Transport Department / Hospital authority / Voters / Jurors / Agriculture and Fisheries / Inland Revenue Department etc databases. The notice will have a section for the recipient to complete and return should he/she wish to dispute liability for the smoking contravention. The notice should list the additional costs involved should the case be heard in court. This should have the effect of shortening the time it takes to issue summons proceedings , dissuade people from attending court and hence will likely result in them paying the fine without contest. Please see the UK legislation at the Addendum – you may wish to consider following their example and offer a discounted fine of perhaps $ 1,200 if the offender pays the FPN within 7 days of the offence as a further encouragement not to contest the case.
    http://www.opsi.gov.uk/si/si2007/uksi_20070764_en_1

    For information herewith is a similar incident in Great Britain :

    “Cabbie fuming after smoking fine Apr 24 2008 by Dave Edwards, Rhondda Leader
    A TAXI driver has had to cough up more than £400 in court fines and costs after council officials spotted him smoking in his cab. John Colcomb, of Henllys, Trebanog, has become the first person in Rhondda Cynon Taff and one of the first in Wales to be prosecuted under the new smoking ban law thanks to a successful prosecution by RCT Council’s Public Health and Protection Enforcement Officers. But Mr Colcomb has blasted what he describes as the ‘Big Brother’ attitude of the council and claims he has been victimised. Mr Colcomb, who has been a taxi driver for 18 years, told the Leader that there were “plenty of other taxi drivers smoking in their cabs”. He said: “The council couldn’t even get the name of the taxi company right. It is called AC Taxis. “It just feels like Big Brother is watching you. I enjoy my fags and I don’t know what the world is coming to when you are not allowed to have a smoke in your vehicle. “There are plenty of other taxi drivers out there who are smoking in their cabs and the council will have their hands full trying to catch them.” Mr Colcomb, received two fixed penalty notices; one for smoking in a work vehicle and the second for throwing the cigarette butt onto the highway. When he refused to pay the penalties the case was heard at Rhondda Magistrates’ Court where he was ordered to pay £435.21.

    The court was told that at 4.40pm on September 17, 2007 two of the council’s enforcement officers saw Mr Colcomb driving a black Vauxhall Vectra along Trebanog Road, Trebanog. His vehicle was stationary and waiting to turn right into Trebanog Service Station when the offence took place. Mr Colcomb was seen throwing a cigarette butt through the driver-side window onto the road. The offence of littering contravenes Section 87 of the Environmental Protection Act 1990. The car he was driving was a licensed taxi, named as Ace Taxis, which resulted in him being fined for smoking in a work’s vehicle, contrary to Section 7 of the Health Act 2006. On the following day Mr Colcomb received the two fixed penalty notices of £50 for smoking and £75 for litter, both of which he disputed. RCT prosecuted Mr Colcomb for failure to pay the fixed penalty notices at Rhondda Magistrates’ Court. The defendant did not attend the hearing and the facts were proven in his absence. He was fined £100 for each of the charges, and ordered to pay £220.21 costs and £15 in victim surcharge. David Jones, Head of Community Protection said: “The council’s Public Health and Protection Officers led an extensive campaign on the run-up to the ban. Nobody has an excuse in saying that they are not aware of the implications of it.” Nigel Wheeler, Service Director for Streetcare said: “We continue to promote a programme of change to crackdown on litter, dog fouling, flyposting, flytipping, graffiti and waste issues. This is to ensure that Rhondda Cynon Taf will be a community where everyone who lives, works or visits the area will enjoy the benefits of a better quality of life.” a ‘fine’ mess: Taxi driver John Colcomb is the first person to be fined in RCT under new smoking laws
    http://icwales.icnetwork.co.uk/news/south-wales-news/rh    ondda/2008/04/24/cabbie-fuming-after-smoking-fine-91466-20802134/

  3. “require that person to supply his name, address and contact telephone number, and to produce proof of identity. Failure to supply these personal particulars or to produce proof of identity, or the supply of false or misleading personal particulars is an offence”

    We can foresee numerous people attempting a ‘runaway’ approach to avoid the receipt of FPNs when they are caught . We suggest the new legislation includes the ability of all authorized persons who are allowed to issue such FPNs to be permitted to take the photograph of any suspected offender and indeed that they are instructed to do so for evidential value (by camera phone so the picture can be transmitted in case of a runaway.) Also that they be able to issue FPNs to persons they have not seen carrying lighted tobacco products but whom are identified by a witness (willing to attend court) who has seen the alleged offence. We also suggest the consideration of adding an offence of ‘absconding to evade the issue of a FPN’ and publicise the fact that this offence will carry a penalty of $10,000 for the first offence and higher for a repeat offence.
  4. Tourists and business visitors
    Hong Kong had 27 million tourists last year. Half of these were from the Mainland and 63% of Mainland Chinese males smoke. The percentage of smokers amongst our overseas visitors is generally higher than the smoking percentage of our population in Hong Kong. Immigration counters / airport luggage trolleys should advertise the requirement to carry ID n Hong Kong and advertise the fact that smoking is illegal in many places here and that there will be strict enforcement. There needs to be co-operation between the issuing FPN department and the Immigration Department so that offenders trying to leave Hong Kong without paying their fines can make payment at Immigration points when they are trying to depart.
  5. Exceptional Cases
    ” There would be cases in which the offender could not afford to pay the fixed penalty or has other reasons to plead for different treatment. To retain flexibility for any compassionate consideration, a magistrate may for good cause, on an application by the enforcement authority at anytime, rescind any order for the payment of a fixed penalty and/or any additional penalty imposed and/or any administrative costs, or any other order made in the same proceedings.”

    We consider that if the offenders can afford to buy cigarettes they can afford to pay the penalty. There has to be some form of punishment whether community service or other as an indication that smoking in public will not be tolerated. This basically tells any person that if they plead they are poor they have a licence to smoke anywhere they like since they will not be fined and this will be abused.

Yours faithfully,

James Middleton

Chairman Anti Tobacco Committee
Clear the Air

http://tobacco.cleartheair.org.hk
http://www.cleartheair.org.hk

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