PLC Paper No. CB(2)199
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/19/96
Minutes of the Fifth Meeting of the Bills Committee on
the Smoking (Public Health) (Amendment) Bill 1997 and
the Smoking (Public Health) (Amendment) (No. 2) Bill 1997
held on Friday, 13 June 1997 at 8:30 am
in the Chamber of the Legislative Council Building
Members Present :
Hon Christine LOH (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon Michael HO Mun-ka
Dr Hon HUANG Chen-ya, MBE
Dr Hon Philip WONG Yu-hong
Hon CHAN Wing-chan
Hon Andrew CHENG Kar-foo
Hon Paul CHENG Ming-fun
Dr Hon LAW Chi-kwong
Members Absent :
Hon Eric LI Ka-cheung, OBE, JP
Hon James TIEN Pei-chun, OBE, JP
Hon CHOY Kan-pui, JP
Hon Bruce LIU Sing-lee
Hon MOK Ying-fan
Hon NGAN Kam-chuen
Public Officers Attending :
- Mr Gregory LEUNG, JP
- Deputy Secretary for Health & Welfare
- Mr Derek GOULD
- Principal Assistant Secretary for Health & Welfare
- Mr John WONG
- Senior Assistant Law Draftsman (Acting)
- Miss WONG Yuet-wah
- Assistant Secretary for Health & Welfare
Clerk in Attendance :
- Ms Doris CHAN
- Clerk Assistant Secretary CAS(2)3
Staff in Attendnace :
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2)3
I.Meeting with the Administration on outstanding issues
The Chairman informed members that 7,136 signatures from tobacco companies and cigarette wholesalers and distributors objecting to a ban on sports sponsorship by tobacco companies had been presented to the Bills Committee. The Bills Committee then proceeded to conclude its deliberation on the Bills. The gist of the discussion is summarized in paragraphs 2 - 16.
Designation of no smoking area
2. Mr Gregory LEUNG informed members that the Administration would move a Committee stage amendment (CSA) to include the Airport Passenger Terminal Complex at Chek Lap Kok in Schedule 3. He explained that section 1A of the Smoking (Public Health) Ordinance (Cap. 371) (the Ordinance) provided that the principal officer of an agency might by order in the Gazette designate any area specified in column 3 of Schedule 3 or part thereof as a no smoking area. Dr Philip WONG asked and Mr LEUNG responded that restaurants in the Airport would be included. However, it was a matter for negotiation between the Airport Authority and respective restaurant operators.
3. With reference to Dr Hon LEONG Che-hungs relevant proposal in the No. 1 Bill, Mr Gregory LEUNG said that it was difficult within such a short timeframe to identify the scope of the areas such as whether tuition centre should be included as educational institute. The Administration therefore suggested not to include these areas at the present stage. However, a study could be carried out in the future. In this regard, Dr. LEONG referred to his draft CSAs which were tabled at the meeting and subsequently issued vide LegCo Paper No. CB(2) 2695/96-97(02) that definition of these areas had been clearly set out. Members noted that proposed new section 1(2B) in the draft CSAs should read "Notwithstanding subsection (2), section 10 shall come into operation on 31 December 1999". In response to Dr LEONGs enquiry about the difference between Schedule 3 and Schedule 4, Mr LEUNG explained that Schedule 3 specified certain public agencies being empowered to designate no smoking areas whereas Schedule 4 specified premises that might be designated as no smoking areas. It was therefore decided to include the Airport Authority in Schedule 3 as the Civil Aviation Department had already been included in the same. Dr HUANG Chen-ya remarked that it would be easier to enforce the no smoking rule if the whole premises were designated as no smoking area in Schedule 2. It was also a matter of principle that all public areas should be non-smoking but the manager could designate certain smoking areas. However, Mr LEUNG said that it would have the same legal effect to designate premises as no smoking area according to Schedule 2 or Schedule 4.
4. With reference to Dr LEONG Che-hungs proposed amendment to Schedule 2, Mrs Selina CHOW remarked that the phrase "any indoor area open to the public or to students generally" was very vague and it might not necessarily refer to public area. She therefore preferred the Administrations approach to empower the agencies to designate no smoking area as appropriate. Dr LEONG Che-hung pointed out that designation of no smoking areas in Schedule 2 would have more certain statutory status in preventing people from smoking in these areas. However, agencies specified in Schedule 3 would have the discretion not to designate no smoking area or it might be difficult for these agencies to enforce the no smoking rule. Mrs CHOW also had reservation on the proposal to designate educational institutes for adults as no smoking area. Dr LEONG agreed to consider her view. The Chairman also asked and Mr Gregory LEUNG agreed to consider including the designated no smoking areas as proposed by Dr LEONG in Schedule 4.
5. Dr LAW Chi-kwong informed members that the Democratic Party was considering an amendment so that certain areas in Schedule 4 such as shopping malls, supermarkets and department stores would be included in Schedule 2 as designated as a no smoking areas. In order to protect the health of non-smokers, the Democratic Party would also move an amendment to the effect that for restaurants exceeding a certain size, at least 50% of the public area should be designated no smoking area unless the whole restaurant was used for a private function e.g. wedding banquet. VIP rooms with separate air conditioning units or up to ceiling partitioning might also be exempt. Mrs Selina CHOW said that the manager of a restaurant should have the discretion to designate no smoking area. She expressed concern that the proposal might intrude into the operation of commercial business. In this regard, Dr LAW pointed out that the Democratic Party had also considered the difficulty of implementation for small restaurants. It was therefore necessary to set a size criterion. Dr LEONG Che-hung stressed that there were three factors to be considered when requiring a restaurant to designate no smoking areas, namely: (a) it should be of certain size so that designation of no smoking area would not affect its operation; (b) the requirement should not be imposed if the whole restaurant was reserved for a private function; and (c) simply granting discretion to the managers might actually create implementation difficulties for them. With reference to the Democratic Partys proposal, the Chairman asked and Mr CHAN Wing-chan responded that the industry had not formulated its general position yet. However, it was of primary importance that the restaurants business would not be adversely affected. The Chairman therefore suggested that Mr CHAN should relay the industrys view to the Democratic Party as soon as possible.
Meaning of tobacco advertisement
6. Mr Gregory LEUNG said that the Administration had considered the concerns expressed by members and deputations about the meaning of tobacco advertisement. However, the Administration concluded that new section 14(3) had already provided sufficient protection. In response to the Chairmans enquiry, Mr LEUNG confirmed that the Administration wished to retain the provision in new section 14(2)(iii) relating to congratulating another person or thing on an achievement. In this regard, Dr LEONG Che-hung drew members attention to his proposed amendments which sought to delete the provision and replace it by a new paragraph to limit it to the name of the company or body corporate as the sponsor of an event.
7. Mr Gregory LEUNG also informed members that the Administration would move an amendment to tighten up the provisions of section 14(2) to the effect that only advertisements exclusively for a non-tobacco product or service would be exempted.
Removal and disposal of tobacco advertisement
8. Mr Gregory LEUNG informed members that the Administration would move a CSA to amend new section 14A(2) that "A magistrate may, on the application of the Secretary for Health and Welfare or any public officer authorized in writing by the Secretary, order the disposal of any items removed under subsection (1), whether or not any person is convicted of any offence under this Ordinance, on the grounds that an offence under this Ordinance has been or is being committed in relation to such item. The magistrate shall not order such disposal 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". He explained that the amendment was to ensure that due process was required for the Secretary for Health and Welfare to exercise such power. In response to Mrs Selina CHOWs enquiry, Mr LEUNG explained that the phrase "whether or not any person is convicted" was needed because the owner of that tobacco display or advertisement or advertising structure might not be identified at the time of removal and therefore conviction would not be possible. Mr John WONG added that the magistrate had to be satisfied that an offence under the Ordinance had been or was being committed in relation to such item. Mr LEUNG further explained that amendment to subsection (3) would empower the Government to recover the costs of the removal or disposal from the proprietor of the brand of tobacco product as well as the owner of the tobacco advertisement or advertising structure. Members in general supported the amendments. However, Mr Andrew CHENG asked and Mr LEUNG said that it was proposed to delete the phrase "without payment for it" from subsection (1) because section 14A(3) would have already covered the cost. Mr CHENG expressed concern that it might lead to payment claims. He therefore suggested and Mr LEUNG agreed to review the proposed deletion.
Display of advertisement at point of sale
9. In response to members concern that prohibition of display advertisements at point of sale would affect the livelihood of small individual retailers, Mr Gregory LEUNG said that an exemption would give rise to many loopholes and would reduce the effectiveness of the ban. The Administration therefore would not move any CSA in this respect. Mrs Selina CHOW pointed out that there were about 12,000 retailers of tobacco products which were mainly small individual operators while supermarkets also came under the same category, they were not the main outlet for tobacco products. Mrs CHOW stressed that since legislation already prohibited selling of tobacco products to minors, only smokers would go to such retailers to buy cigarettes and it was unlikely that advertisement at point of sale would attract non-smokers to smoke. With reference to the amendment proposed by Dr LEONG Che-hung to exempt advertisement at any stall or pitch of a licensed hawker provided that it bore a health warning in the prescribed form and manner, Mrs CHOW cautioned that it failed to protect the livelihood of those small individual retailers who did not have a hawkers licence. Dr LEONG responded that hawkers without proper licence should not be allowed to sell anyway. In addition, it was difficult to define the meaning of small individual retailer. Mr LEUNG added that while the Urban Council endorsed hawkers licences for selling cigarettes, the Regional Council did not. In this regard, Dr LAW Chi-kwong informed members that although the Democratic Party shared the views of the Administration and Dr LEONG in principle, it would consider making an amendment with a view to striking a proper balance to protect the livelihood of small individual retailers. In this connection, members noted Mrs Selina CHOWs draft amendments which were tabled at the meeting and subsequently issued vide LegCo Paper No. CB(2) 2695/96-97(03). Members also noted that Mrs CHOW would move an amendment to allow display of advertisement at point of sale.
Tobacco advertisements in printed publications
10. Members noted that Dr LEONG Che-hung would move a CSA to ban tobacco advertisements in printed publications. The ban whould not be applied in relation to a tobacco advertisement in a printed publication (i) for the passengers of any airline or shipping company; (ii) for the tobacco trade as the "in house" magazine of any company engaged in that trade; or (iii) for circulation entirely outside Hong Kong.
Prohibition of display of tobacco advertisement
11. Mr Gregory LEUNG informed members that the Administration had considered a members concern on proposed section 12(2) which allowed display of tobacco advertisement at the premises of manufacturers or wholesale dealers. However, it concluded that the exemption was reasonable because the display was not visible from outside the premises and the purpose was not for advertising. Mr Paul CHENG maintained that it was inconsistent as a health warning was legally required for all tobacco advertisements. Dr LAW Chi-kwong said that the exemption was acceptable at the present stage in view of the technical difficulties envisaged arising from the relatively broad definition of tobacco advertisement. Mrs Selina CHOW shared his view. Members noted that Mr CHENG might consider moving an amendment in this respect.
12. Dr LEONG Che-hung informed members that he would move an amendment to the effect that the prohibition provision should come into operation one year after the Ordinance was enacted in view of the fact that the usual lead time in other countries was only 6 to 12 months. In this connection, Dr LEONG drew members attention to the note on usual lead time from tobacco legislation to implementation which was tabled at the meeting and subsequently issued vide LegCo Paper No. CB(2) 2695/96-97(01). In response to Mrs Selina CHOWs enquiry, Dr LEONG confirmed that to his knowledge, the relevant legislation in Taiwan, Norway and New Zealand covered large advertisement signs. Mrs CHOW then drew members attention to the letter dated 13 June 1997 from Sign Association of Hong Kong (which was tabled at the meeting and subsequently issued vide LegCo Paper No. CB(2) 2695/96-97(04)). Members noted that there were a few advertisement sign contracts which lasted for 5 years. Dr LEONG then asked and Mrs CHOW responded that as advised by the industry, these advertisement sign contracts were normally for a term of 3 plus 2 years. Mrs CHOW therefore asked and Mr LEUNG responded that the Administration considered a grace period of 3 years too long. Mr LEUNG added that a grace period of 2 years had been mentioned in the Administrations letter to the tobacco industry during the consultation exercise on the overall proposal of tobacco control in the No. 2 Bill.
Prohibition on placing of tobacco advertisement on the Internet
13. Mr Gregory LEUNG informed members that the Administration found it difficult to draft the provision of proposed section 13B which sought to prohibit placing of tobacco advertisement on the Internet. However, it would be unfair if the service provider was required to screen the content of materials placed on the Internet. The Administration was therefore still considering how the drafting could be improved. In view of the complexities, Dr Philip WONG remarked that it might not be appropriate to include Internet at the present stage.
Bill of Rights implications
14. Mr Gregory LEUNG explained that the Administration was aware of the Canadian Supreme Court case RJR MacDonald Inc. v Canada (Attorney General) (the court case) when the No. 2 Bill was drafted. However, it considered that the primary question was whether the No. 2 Bill was consistent with the Hong Kong Bill of Rights, having regard to the local circumstances and legislation. Having carefully considered the advice of the Attorney Generals Chambers, the Administration concluded that the proposed restrictions in the No. 2 Bill were permissible under Article 16(3) of the Hong Kong Bill of Rights (BOR) because they were for the protection of public health.
15. Senior Assistant Legal Adviser advised that Article 16 of the BOR provided that whilst everyone had the right to freedom of expression, the exercise of the freedom might be subject to restrictions which were provided by law and were necessary for the protection of public health. He then highlighted the following points regarding the court case for members to consider -
- the Canadian Charter of Rights and Freedoms (the Charter) was slightly different from the BOR, in particular there was no express provision regarding permitting restrictions which were necessary on public health grounds. The wording of the Charter was that the freedom of expression was "subject to reasonable limits prescribed by law as could be demonstrably justified in a free and democratic society";
- the case was not overwhelming and that there were divided views on the part of the 9 Supreme Court judges with 5 of them for and 4 against on the question whether the total ban in Tobacco Products Control Act had unjustifiably infringed the freedom of expression. The Canadian Supreme Court was unanimous that the protection of health and protection of young persons from inducement to use tobacco products were of sufficient importance for the legislature to pass legislation to override the freedom of expression guaranteed by the Charter;
- however, there were different views as to whether a total ban is required to achieve the purpose of protecting public health. The majority held that there were alternatives other than a total ban so that the Charter guarantee could be impaired as little as possible; and
- the court case was more relevant to the No. 1 Bill as it proposed a total ban on tobacco advertisement whereas the No. 2 Bill did not propose a total ban.
Senior Assistant Legal Adviser further advised members that although the court case might be used for reference, it was not binding on Hong Kong courts and a decision by a Hong Kong court on the same facts might not necessarily be the same. In response to Dr HUANG Chen-ya, Senior Assistant Legal Adviser confirmed that the court case started in 1991 and concluded in 1995. Under the rules of evidence, no new evidence of studies conducted after 1991 was admissible in the appeal. The Canadian Supreme Court had therefore decided the court case based on the evidence of the effect of tobacco advertisement on youth on or before 1991. However, the Court also remarked that prediction of human behaviour by way of social sciences research could not be equated with the impact of legislation on human behaviour.
17. Mrs Selina CHOW urged members to consider the implications of the total ban on tobacco advertising proposed in the No. 1 Bill on the BOR. Dr LEONG Che-hung remarked that there were other legitimate businesses which were not allowed to advertise because of public interests or professional ethics. If the No. 1 Bill was passed, it was a matter for the court to decide whether the total ban was unconstitutional. Mrs CHOW then asked and Mr Gregory LEUNG responded that it was the Administrations stance to reduce the number of smokers by a step-by-step approach. It would be a careful process balancing various interests in the community, having regard to public sentiment. In this regard, Mr Andrew CHENG suggested that the Administration, in the long run, should study whether a total ban on tobacco advertising was unconstitutional.
II.Any other business
18. Members noted that the Chairman would make a verbal report to the House Committee on that day. The Chairman reminded members that the deadline for giving notice of Committee stage amendment was midnight of that day.
19. There being no other business, the meeting ended at 10:35 am.
Provisional Legislative Council Secretariat
24 July 1997
Last Updated on 20 October 1997