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June 18th, 2008:

Appeal Bid By Absent Tobacco Tycoon Fails

Ruling on bugging of defendant upheld

Yvonne Tsui – Updated on Jun 18, 2008

The appeal court yesterday rejected an application by the director of a tobacco company – who has absconded – to argue in the top court against the continuation of his criminal trial in the District Court.

The challenge was mounted after lawyers cited what they said was a deliberate breach of legal privilege, by anti-corruption officers who bugged the office of a defendant, as grounds for halting the trial. The trial judge rejected that argument, and a subsequent request for a judicial review of that decision was also rejected.

Lu Dayong, 57, former executive director of Nanyang Brothers Tobacco Co Ltd, failed to appear last week at a District Court hearing on his alleged involvement in the illegal smuggling of Double Happiness cigarettes. A warrant for his arrest was issued.

Lawyer Martin Lee Chu-ming SC said outside court that Lu’s failure to appear at that hearing had not affected the application. He said he had been given detailed instructions on the application before Lu absconded.

Mr Lee, who acted for Lu and two other applicants – both co-defendants in the trial – in the judicial review application, argued yesterday that legal privilege should be recognised as an absolute right.

The appeal stemmed from a ruling on May 16 by Mr Justice Michael Hartmann, who refused to grant leave for a judicial review of District Court Judge Joseph Yau Chi-lap’s decision on April 3 not to stay the criminal proceeding.

Mr Justice Hartmann said it would be inappropriate for him to hear the case as Judge Yau had properly exercised his power to decide on the application for a stay of proceedings. He said the merits of the decision should be heard in the Court of Appeal upon a criminal appeal, not in a judicial review.

Upholding that decision, yesterday’s ruling by Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock, of the Court of Appeal, brought an end to the matter.

The criminal trial will continue in the District Court next Wednesday.

Lu – along with Ko Kit, 36, director of Hang Chun Trade Development, and Chan Kai-san, 37, a sales manager for the same firm – had asked for a stay of the criminal proceedings on the grounds that the Independent Commission Against Corruption’s covert surveillance operation “constituted an affront to public conscience” by bugging a conversation between Ko and her lawyer.

Lu and Ko face one count of conspiracy to arrange for Lu to accept an advantage. All three face a charge of conspiracy to defraud and another count of conspiracy to arrange for Lu to accept an advantage.

Ontario Passes Ban On Smoking In Cars With Kids Under 16

The Canadian Press – June 18, 2008

Ontario became the latest Canadian province to ban smoking in a vehicle with a child present Monday after a government-backed private member’s bill passed in the legislature with the support of all three parties.

Smoking in Ontario workplaces and public areas, such as bars and restaurants, is already illegal in Ontario, but the new ban will provide an additional level of protection to children under the age of 16, said Health Promotion Minister Margarett Best.

“This is about protection of our most vulnerable citizens – children who do not have a voice,” Best told the legislature.

Drivers and passengers in Ontario who don’t butt out in cars carrying children won’t be fined more than $250 for each offence, a much lighter fine than originally envisioned by Liberal backbencher David Orazietti’s bill, which set penalties up to $1,000.

Nova Scotia and British Columbia have already outlawed the practice, which critics liken to child abuse. Prince Edward Island and New Brunswick are also considering a similar ban.

Health care groups who lobbied hard for a ban praised the province for taking the right steps to protect children’s health.

“Doctors have been calling for a ban since 2004 and raising awareness about the serious impacts on children of second-hand smoke in cars,” Ontario Medical Association president Dr. Ken Arnold said in a statement.

“The amount of support it has received publicly and from MPPs of all stripes is an indication that more people are becoming educated about the negative health impacts of smoking.”

Premier Dalton McGuinty once dismissed a province-wide ban as a slippery slope that infringed too much on people’s rights, but changed his tune in March and threw his government’s support behind the private members’ bill., a smokers’ rights group financed in part by the tobacco industry, has raised concerns that the ban will eventually extend to private homes, but McGuinty said that’s not under consideration.

Government officials cite studies which show that kids are exposed to up to 27 times the toxins when they’re in enclosed spaces like a car, which can worsen asthma and lead to other respiratory illnesses.

The province will launch a campaign to better educate the public about the dangers of smoking in vehicles with children, but hasn’t yet determined how much it will spend, Best said.

“We expect the budget will not be a big budget because we expect that there’s going to be a very high percentage of compliance with this piece of legislation,” she said.

But police will be expected to enforce the law once it takes effect, which will only make their jobs more onerous, said Opposition Leader Bob Runciman.

“There will probably be very little enforcement of this, in terms of checking cars and that sort of thing,” he said. “So I think education would be a critical part of this. It has to be.”

Ontario Provincial Police have said the ban won’t be difficult to enforce, as it already inspects for seatbelts and child car seats.

The ban should have also extended protection to teens until they’re 19, when they’re legally allowed to buy cigarettes, said NDP health critic France Gelinas.

“You send this message that, ‘We know there are a lot of kids between the ages of 16 and 19 that smoke. It’s a problem we’re not ready to tackle, therefore we’re going to put the cutoff at 16 years old,”‘ she said.

“That’s the wrong message to send.”