May 3rd, 2008:

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/rhondda/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