To prohibit smoking in certain areas, to provide for the display of a health warning and other information on tobacco packets and in tobacco advertisements and for matters incidental thereto. (Amended 91 of 1994 s. 2) [Part I, Part IV (except sections 11 and 12) and Part V］ 13 August 1982 Section 11 15 November 1982 Part II and section 12 (except in relation to advertisements by way of neon signs) 15 February 1983 Section 12 ( in relation to advertisements by way of neon signs) 15 May 1983 Part III ［ 15 August 1983 L.N. 314 of 1982] (Originally 58 of 1982) ___________________________________________________________________ Note: Please see the transitional provision in the Smoking (Public Health) (Amendment) Ordinance 1997 (93 of 1997), which is reproduced as follows- "27. Transitional (1) It shall not be an offence under the principal Ordinance, as amended by this Ordinance, to sell, offer for sale or possess for the purposes of sale packets or retail containers of tobacco products which do not comply with the provisions of the principal Ordinance, as amended by this Ordinance, relating to tar and nicotine yields if, but only if, the packets or retail containers comply with the provisions of the principal Ordinance, as in force immediately before the commencement* of this section, relating to tar group designations. (2) This section shall expire on the 1st anniversary of the commencement* of this section.". * Commencement date: 16 July 1999. Cap 371 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Smoking (Public Health) Ordinance. Cap 371 s 2 Interpretation In this Ordinance, unless the context otherwise requires- "advertisement" (广告) means any announcement to the public made or to be made in any manner; "agency" (机构) means any department of the Government, or other organization or body, specified in column 2 of Schedule 3; (Added 68 of 1995 s. 37) "amusement game centre" (游戏机中心) has the meaning assigned to it by section 2 of the Miscellaneous Licences Ordinance (Cap 114); (Added 9 of 1992 s. 2) "brand" (牌子), except in section 14(3), includes a brand product, that is to say a variety of a brand marketed as having qualities differing from another variety of that brand; "cigar" (雪茄) means tobacco rolled up in tobacco, in such form as to be capable of immediate use for smoking; (Added 91 of 1994 s. 3) "cigarette" (香烟) means tobacco rolled up in paper or in any other material except tobacco, in such form as to be capable of immediate use for smoking; "cigarette tobacco" (香烟烟草) means tobacco packaged as being suitable for the making by the purchaser of cigarettes for his own use; "cinema" (电影院), "theatre" (剧院) and "concert hall" (音乐厅) mean- (a) any building or part of a building used primarily as a cinema, theatre or concert hall, as the case may be, whether or not it is being so used at the material time, other than the premises of any club, association or other body in which films are exhibited, or plays or music performed for the benefit primarily of the members thereof and their guests; (b) any place of public entertainment licensed under the Places of Public Entertainment Ordinance (Cap 172) while open to the public on account of any concert, stage play, stage performance or other musical, dramatic or theatrical entertainment or any cinematograph display; (Added 9 of 1992 s. 2)"manager" (管理人) in relation to- (a) an amusement game centre, cinema, theatre, concert hall, public transport carrier, restaurant, department store, shopping mall, supermarket or bank, includes an assistant manager, any person holding an appointment analogous to that of manager or assistant manager or any person who is responsible for the management, or is in charge or control of the amusement game centre, cinema, theatre, concert hall, public transport carrier, restaurant, department store, shopping mall, supermarket or bank; (Replaced 9 of 1992 s. 2. Amended 91 of 1994 s. 3; 93 of 1997 s. 2) (b) a lift, includes the owner, occupier or lessee of the building in which the lift is situated or the person in charge or control of such building or lift; (c) a no smoking area designated under section 3(1A), means the principal officer who makes such a designation; (Added 68 of 1995 s. 37)"newspaper" (报刊), "local newspaper" (本地报刊) and "printed document" (印刷文件) have the same meaning as in the Registration of Local Newspapers Ordinance (Cap 268); (Amended 15 of 1987 s. 19) "nicotine yield" (尼古丁量) means the nicotine yield per cigarette rounded off to one decimal place and expressed in milligrams; (Added 93 of 1997 s. 2) "no smoking area" (禁止吸烟区) means an area designated as a no smoking area under section 3(1), (1A) or (1C) or the premises or part thereof designated under section 3(1B); (Replaced 9 of 1992 s. 2. Amended 93 of 1997 s. 2) "pipe" (烟斗) means a receptacle or other device designed for use for smoking tobacco in a form other than as a cigarette or cigar; (Added 91 of 1994 s. 3) "pipe tobacco" (烟斗烟草) means tobacco packaged as being suitable for smoking in a pipe; (Added 91 of 1994 s. 3) "principal officer" (主要高级人员) means- (a) in relation to a department of the Government, the head of the department; (b) in relation to an organization or body, the head or other officer who is in charge of the organization or body; (Added 68 of 1995 s. 37)"proof of identity" (身分证明文件) means proof of identity for the purposes of Part IVA of the Immigration Ordinance (Cap 115); "public lift" (公共升降机) means a lift to which the public have access and includes any lift giving access to separately occupied flats, offices or other units of accommodation and a hotel lift; "public transport carrier" (公共交通工具) means any public bus, public light bus, taxi, train, light rail vehicle, car, tramcar or ferry vessel mentioned in Schedule 1 while the public bus, public light bus, taxi, train, light rail vehicle, car, tramcar or ferry vessel is, subject to Schedule 1, carrying members of the public; (Added 9 of 1992 s. 2) "publish" (刊登) in relation to an advertisement means making known an advertisement in any manner; "regulations" (规例) means regulations under section 18; "restaurant" (食肆) means a restaurant licensed pursuant to the Public Health and Municipal Services Ordinance (Cap 132); (Added 93 of 1997 s. 2) "retail container" (零售盛器) means a container suitable for the retail marketing of cigarette packets, cigar packets or pipe tobacco packets; (Amended 91 of 1994 s. 3) "sale, sell" (出售、售卖、销售、售) includes the disposal by barter or raffling but excludes the disposal of confiscated cigarettes without health warnings through auctions by the Government; (Added 93 of 1997 s. 2) "Secretary" (局长) means the Secretary for Health, Welfare and Food; (Replaced L.N. 106 of 2002) "smoke" (吸烟)、(吸用) means inhaling and expelling the smoke of tobacco or other substance; "tar yield" (焦油量) means the tar yield per cigarette rounded off to the nearest milligram; (Added 93 of 1997 s. 2) "tobacco advertisement" (烟草广告) has the meaning assigned to it by section 14. (Added 91 of 1994 s. 3) "tobacco product" (烟草产品) means any cigarette, cigarette tobacco, cigar or pipe tobacco; (Added 93 of 1997 s. 2) "trade mark" (商标) has the same meaning as in section 3 of the Trade Marks Ordinance (Cap 559); (Added 93 of 1997 s. 2. Amended 35 of 2000 s. 98) (Amended 9 of 1992 s. 2; 91 of 1994 s. 3) Cap 371 s 3 Prohibition on smoking in certain designated areas (1) The areas described in Schedule 2 are designated as no smoking areas. (1A) The principal officer of an agency may designate any area specified in column 3 of Schedule 3 in relation to each such agency, or part thereof as a no smoking area. (Added 68 of 1995 s. 38. Amended 93 of 1997 s. 3) (1B) Subject to subsection (1C), the manager of any premises specified in Schedule 4 may designate any such premises or part thereof as a no smoking area. (Added 93 of 1997 s. 3) (1C) The manager of a restaurant which provides indoor seating accommodation for more than 200 persons, excluding accommodation being used exclusively for a private event and separated by full height partition, shall designate not less than one-third of the area of such as a no smoking area. (Added 93 of 1997 s. 3) (2) No person shall smoke or carry a lighted cigarette, cigar or pipe in a no smoking area. (3) The manager of a no smoking area or any person authorized in that behalf by any such manager may, in respect of any person who appears to be contravening subsection (2)- (a) after indicating that the person is smoking or carrying a lighted cigarette, cigar or pipe, as the case may be, in a no smoking area in contravention of subsection (2), require the person to extinguish the lighted cigarette, cigar or pipe; (b) where the person fails to extinguish the lighted cigarette, cigar or pipe, require him- (i) to give his name and address and to produce proof of identity; and (ii) to leave the no smoking area;(c) where the person fails, as required under paragraph (b)- (i) to give his name and address and to produce proof of identity; or (ii) to leave the no smoking area, remove him from the no smoking area by the use of reasonable force if necessary and detain him and call for the assistance of a police officer to assist in the enforcement of this section.(4) Where a person is, under subsection (3), required to leave a no smoking area, removed from a no smoking area or detained, he shall not be entitled to a refund of any admission fee or money paid by him for entry into the premises or building in which the no smoking area is situated. (Replaced 9 of 1992 s. 3) Cap 371 s 4 Prohibition on smoking in public transport carriers (1) No person shall smoke or carry a lighted cigarette, cigar or pipe in a public transport carrier. (2) The driver, conductor, inspector, ticket collector or manager of any public transport carrier or any person authorized in that behalf by any such manager may, in respect of any person who appears to be contravening subsection (1)- (Amended 68 of 1995 s. 39) (a) after indicating that the person is smoking or carrying a lighted cigarette, cigar or pipe, as the case may be, in a public transport carrier in contravention of subsection (1), require the person to extinguish the lighted cigarette, cigar or pipe; (b) where the person fails to extinguish the lighted cigarette, cigar or pipe, require him- (i) to give his name and address and to produce proof of identity; and (ii) to leave the public transport carrier;(c) where the person fails, as required under paragraph (b)- (i) to give his name and address and to produce proof of identity; or (ii) to leave the public transport carrier, remove him from the public transport carrier by the use of reasonable force if necessary and detain him and call for the assistance of a police officer to assist in the enforcement of this section.(3) Where a person is, under subsection (2), required to leave a public transport carrier, removed from a public transport carrier or detained, he shall not be entitled to a refund of any money paid by him for carriage by the public transport carrier. (Replaced 9 of 1992 s. 3) Cap 371 s 5 Display of signs where smoking prohibited The manager shall place in a prominent position in each no smoking area or public transport carrier, as the case may be, a sufficient number of signs in English and Chinese to indicate that smoking is prohibited in the no smoking area or the public transport carrier and such signs shall be of the prescribed description and shall be maintained by the manager in legible condition and good order. (Replaced 9 of 1992 s. 3) Cap 371 s 6 (Repealed) (Repealed 9 of 1992 s. 4) Cap 371 s 6A Display of signs outside restaurants (1) The manager of a restaurant shall place and keep in place in a prominent position in the restaurant and visible from outside the restaurant a sign in English and Chinese indicating whether there is in the restaurant an area of its seating accommodation where smoking is not permitted. (2) A sign required by subsection (1) shall be of the prescribed description and shall be maintained by the manager in legible condition and good order. (3) Any manager who fails to place or keep in place a sign in accordance with subsection (1) or to maintain a sign in accordance with subsection (2) commits an offence and is liable on summary conviction to a fine at level 4. (4) (Repealed 93 of 1997 s. 4) (Added 91 of 1994 s. 4) Cap 371 s 7 Offences under Part II (1) Any person who contravenes section 3 or 4 commits an offence and is liable on summary conviction to a fine of $5000. (2) Any person who fails to give his name and address or to produce proof of identity when required to do so under section 3(3) or 4(2) or who then gives a false or misleading name or address commits an offence and is liable on summary conviction to a fine at level 3. (3) Any manager who fails to place signs in accordance with section 5 or to maintain the signs in the manner required by that section commits an offence and is liable on summary conviction to a fine at level 4. (Replaced 9 of 1992 s. 5) (4) Any manager who contravenes section 3(1C) commits an offence and is liable on summary conviction to a fine at level 4. (Added 93 of 1997 s. 5) (Amended 9 of 1992 s. 5; 93 of 1997 s. 5) Cap 371 s 8 Sales of cigarettes and tobacco products PART III SALES OF TOBACCO PRODUCTS (Amended 91 of 1994 s.5) (1) No person shall sell, offer for sale or possess for the purposes of sale any cigarettes unless- (a) they are in a packet of at least 20 sticks; and (b) the packet thereof and, if the packet is within a retail container, the container also, bear in the prescribed form and manner- (i) a health warning; (ii) the tar and nicotine yields. (Replaced 93 of 1997 s. 6)(2) Nothing in this section or in section 8A or 9 shall apply to anything done in relation to cigarettes, cigarette tobacco, cigars or pipe tobacco which are held- (Amended 9 of 1992 s. 6; 91 of 1994 s. 6) (a) in bond; or (b) by a manufacturer of tobacco products,for export from Hong Kong. Cap 371 s 8A Prohibition on sale of cigarette with a tar yield exceeding 17 milligrams (1) No person shall sell, offer for sale or possess for the purposes of sale any cigarette containing an amount of tar exceeding 17 milligrams. (2) A certificate purporting to be under the hand of the Government Chemist and stating that a cigarette contains an amount of tar exceeding 17 milligrams shall be evidence of the facts stated in the certificate as at the date of such certificate and shall be received in evidence without further proof. (Added 9 of 1992 s. 7. Amended 93 of 1997 s. 7) Cap 371 s 8B Prohibition on sale of tobacco products from a vending machine No person shall sell or offer for sale any tobacco product from a vending machine. (Added 93 of 1997 s. 8) Cap 371 s 9 Health warnings when tobacco products are sold No person shall sell, offer for sale or possess for the purposes of sale any cigar, pipe tobacco or cigarette tobacco unless the container thereof bears a health warning in the prescribed form and manner. (Replaced 91 of 1994 s. 7) Cap 371 s 10 Offences under Part III (1) Any person who contravenes section 8, 8A, 8B or 9 commits an offence and is liable on summary conviction to a fine at level 4. (Amended 93 of 1997 s. 9) (1A) In any proceedings for a contravention of section 8A it shall be a defence for the person charged to prove that he did not know and had no reason to believe that any cigarette to which the proceedings relate contained an amount of tar exceeding 17 milligrams. (Added 9 of 1992 s. 8) (2) Any manufacturer of cigarettes or his agent and any wholesale distributor of cigarettes who sells, offers for sale or possesses for the purpose of sale any cigarettes to which section 8 applies which have on their packet or retail container a tar yield or nicotine yield which, having regard to any determination under section 16 and the regulations, is incorrect, commits an offence and is liable on summary conviction to a fine at level 4. (3) Any manufacturer of cigarettes or his agent and any wholesale distributor of cigarettes who sells, offers for sale or possesses for the purpose of sale any cigarettes to which section 8 applies which have on their packet or their retail container a brand name which includes the words "light", "lights", "mild", "milds", "low tar", "醇", "焦油含量低" or other words which imply or suggest that the cigarettes have a low tar yield unless the cigarettes have been determined under section 16 and the regulations to have a tar yield of 9 milligrams or less, commits an offence and is liable on summary conviction to a fine at level 4. (Replaced 93 of 1997 of s. 9) (Amended 9 of 1992 s. 8; 93 of 1997 s. 9) Cap 371 s 10A Seizure and forfeiture (1) A person holding an office specified in Schedule 1 to the Customs and Excise Service Ordinance (Cap 342) may without warrant seize, remove and detain for the purpose of proceedings under this Part- (a) any packet or retail container of cigarettes, cigarette tobacco, cigars or pipe tobacco- (Amended 91 of 1994 s. 8) (i) which does not bear a health warning or, where required, the tar and nicotine yields, in the form and manner required by section 8 or 9; or (ii) which that person reasonably suspects may contain any cigarette containing an amount of tar exceeding 17 milligrams; (Replaced 9 of 1992 s. 9. Amended 93 of 1997 s. 10)(aa) any packet of cigarettes which contains less than 20 sticks of cigarettes; (Added 93 of 1997 s. 10) (b) the contents of such packet or container; (c) any receptacle in which such packet or container is contained; (ca) any vending machine or tobacco product in connection with an offence under section 8B; (Added 93 of 1997 s. 10) (d) anything which appears to that person to be evidence of an offence under this Part.(1A) A person holding an office specified in Schedule 1 to the Customs and Excise Service Ordinance (Cap 342) may without warrant seize, remove and detain for the purpose of proceedings under this Part- (a) any cigarette not contained in any packet or retail container whether or not referred to in subsection (1)(a) and which that person reasonably suspects may contain an amount of tar exceeding 17 milligrams; (Amended 93 of 1997 s. 10) (b) any receptacle in which such cigarette is contained; (c) anything which appears to that person to be evidence of an offence under this Part. (Added 9 of 1992 s. 9)(2) Subject to subsection (4), any article seized under subsection (1) or (1A) may be retained in the custody of the Commissioner of Customs and Excise until either proceedings under this Part are completed or it is decided that no such proceedings shall be brought. (3) For the purposes of section 16 of the Dutiable Commodities Ordinance (Cap 109) (which relates to obstruction of a member of the Customs and Excise Service) as read with section 46 of that Ordinance, any article seized under subsection (1) or (1A) shall be deemed to have been seized in pursuance of a power conferred by that Ordinance. (4) A magistrate may, on the application of the Commissioner of Customs and Excise, order the forfeiture of any article mentioned in subsection (1)(a), (aa), (b), (c) or (ca) or (1A)(a) or (b), whether or not any person is convicted of any offence under this Part, on the grounds that an offence under this Part has been committed in relation to such article or that such article may not lawfully be sold or possessed for the purposes of sale in Hong Kong: (Amended 93 of 1997 s. 10) Provided that the magistrate shall not order such forfeiture 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, be found. (5) Any article forfeited under subsection (4) shall be destroyed or disposed of in the same manner as any article forfeited under sections 48, 48A and 48C of the Dutiable Commodities Ordinance (Cap 109), and the provisions of sections 49 and 50 of that Ordinance shall apply in relation to articles forfeited under subsection (4) as they do to articles forfeited under sections 48, 48A and 48C of that Ordinance. (Amended 70 of 1993 s. 7) (Added 52 of 1983 s. 2. Amended 9 of 1992 s. 9) Cap 371 s 11 Tobacco advertisements in printed publications PART IV TOBACCO ADVERTISING (Amended 91 of 1994 s. 9) (1) No person shall print, publish or cause to be published a tobacco advertisement in a printed publication to which this section applies. (Replaced 93 of 1997 s. 11) (2) This section applies to- (a) any local newspaper; (b) any printed document published or distributed in Hong Kong. (Replaced 93 of 1997 s. 11)(3) Nothing in this section or section 12 shall apply in relation to a tobacco advertisement in a printed publication- (Amended 91 of 1994 s. 10) (a) being a local newspaper published- (i) for the passengers of any airline or shipping company; (ii) for the tobacco trade or as the "in house" magazine of any company engaged in that trade; (Replaced 26 of 1984 s. 2) (iii) for circulation entirely outside Hong Kong; (Added 93 of 1997 s. 11)(aa) (Repealed 93 of 1997 s. 11) (b) in such circumstances as may be prescribed. Cap 371 s 12 No display of tobacco advertisement (1) No person shall- (a) display or cause to be displayed; or (b) publish or distribute for the purpose of display or cause to be published or distributed for the purpose of display,any tobacco advertisement in writing or other permanent or semi-permanent form. (2) Subsection (1) does not apply to any tobacco advertisement which- (a) is in or upon any stall or pitch of a hawker who is licensed pursuant to the Public Health and Municipal Services Ordinance (Cap 132) to hawk commodities, including tobacco products, at that stall or pitch; and (b) bears a health warning in the prescribed form and manner.(3) Subsection (1) does not apply to any tobacco advertisement which is in or upon any premises of a retail dealer dealing in commodities including tobacco products if- (a) the number of persons employed by the dealer does not exceed 2; and (b) the tobacco advertisement bears a health warning in the prescribed form and manner.(4) Subsection (1) does not apply to any tobacco advertisement which- (a) is in or upon any premises- (i) of any manufacturer of tobacco products or any wholesale dealer dealing in tobacco products; and (ii) which are used for the manufacturing of tobacco products or for the purpose of dealing by wholesale in tobacco products; and(b) is not visible from outside the premises.(5) The tobacco advertisement mentioned in subsection (4) is not required to bear a health warning or the tar and nicotine yields. (Replaced 93 of 1997 s. 12) Cap 371 s 13 Prohibition on broadcast of tobacco advertisement by radio or visual images No person shall broadcast a tobacco advertisement- (Amended 91 of 1994 s. 12) (a) by the transmission of sound by means of radio waves; or (b) by the transmission of visual images or sound by wireless or otherwise than by wireless,intended for general reception by members of the public. (Amended 93 of 1997 s. 13) (Replaced 9 of 1992 s. 11) Cap 371 s 13A Prohibition on exhibition of tobacco advertisement by film (1) No person shall exhibit a tobacco advertisement by film. (Amended 91 of 1994 s. 13) (2) In this section "exhibit" (上映) and "film" (电影) mean, respectively, exhibit and film within the meaning of section 2 of the Film Censorship Ordinance (Cap 392). (Added 9 of 1992 s. 11) Cap 371 s 13B Prohibition on placing of tobacco advertisement on the Internet (1) No person shall place or cause to be placed a tobacco advertisement on the Internet. (2) For the avoidance of doubt, a holder of a Public Non-Exclusive Telecommunications Service Licence granted under the Telecommunications Ordinance (Cap 106) shall not be responsible for- (Amended 36 of 2000 s. 28) (a) any content placed on the Internet by a user and made available for the use of another user unless the holder has knowledge of such content and can reasonably be expected to block the use of such content or require amendment of such content; or (b) any such content to which the holder only provides access, including the automatic and temporary storage of such content by the holder due to the request of a user.(3) Subsection (1) shall not apply to any tobacco advertisement which is contained in any private correspondence on the Internet and is not for commercial purposes. (Added 93 of 1997 s. 14) Cap 371 s 14 Meaning of tobacco advertisement (1) For the purposes of this Part an advertisement is a tobacco advertisement if it- (a) contains any express or implied inducement, suggestion or request to purchase or smoke cigarettes, cigarette tobacco, cigars or pipe tobacco; (Amended 93 of 1997 s. 15) (b) relates to smoking in terms which are calculated, expressly or impliedly, to promote or encourage the use of cigarettes, cigarette tobacco, cigars or pipe tobacco; or (Amended 93 of 1997 s. 15) (c) illustrates or mentions smoking or cigarettes, cigarette tobacco, cigars or pipe tobacco or their packages or qualities. (Added 93 of 1997 s. 15)(1A) Notwithstanding subsection (1)(c), an advertisement is not regarded as a tobacco advertisement if its purpose is to discourage smoking. (Added 93 of 1997 s. 15) (2) Subject to subsections (3) to (5), where- (a) an advertisement; or (b) any object, other than a tobacco product, which is displayed to the public, whether for sale or otherwise, in the course of conducting any business or providing any service,includes the name or trade name of any person associated with the marketing of any tobacco product, or any trade mark or brand name of a tobacco product, or any pictorial device or part thereof commonly associated therewith, then the advertisement or object shall be deemed to be a tobacco advertisement. (Replaced 93 of 1997 s. 15) (3) Subsection (2) shall not apply to any advertisement or object if the inclusion of such name, trade name, trade mark, brand name or pictorial device or part thereof mentioned in subsection (2) is exclusively for- (a) a non-tobacco product or service; or (b) job recruitment purposes. (Replaced 93 of 1997 s. 15)(4) Subsection (2) shall not apply to any advertisement or object which includes- (a) the name of any company or body corporate associated with the manufacture or marketing of any tobacco product; or (b) any name identified with the trade name or brand name of any tobacco product, in association with any product not being tobacco,as the sponsor of an event or as congratulating another person or thing on an achievement of, or event relating to, such person or thing and which does not mention the words "cigarette", "cigarettes", "smoking", "tobacco", "cigar", "cigars", "pipe" or "pipes" or "香烟", "吸烟", "烟草", "雪茄" or "烟斗". (Added 93 of 1997 s. 15) (5) Notwithstanding subsection (2), any accidental or incidental appearance of any tobacco product or the trade mark, trade name, brand name or logo of any tobacco product where no valuable consideration has been or is intended to be given for such appearance is not a tobacco advertisement. (Added 93 of 1997 s. 15) (6) The display of the following at any premises where tobacco products are sold is not a tobacco advertisement- (a) one price marker for each tobacco product- (i) containing only the name and price of the tobacco product; and (ii) of a size not greater than the size of the price marker of any of the non-tobacco products sold in the premises; or(b) one price board not exceeding 2000 square centimetres listing only the names and prices of the tobacco products for sale. (Added 93 of 1997 s. 15) (Amended 91 of 1994 s. 14) Cap 371 s 14A Removal and disposal of tobacco advertisement (1) Any public officer authorized in writing by the Secretary may, without payment for it, remove or cause to be removed any tobacco advertisement or advertising structure in respect of which he reasonably suspects that an offence under this Ordinance has been or is being committed. (2) A magistrate may, on an application of the Secretary or any public officer authorized in writing by the Secretary, order the disposal of any tobacco advertisement or advertising structure 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 advertisement or structure. (3) The magistrate shall not order such disposal unless he is first satisfied that all persons with an interest in such advertisement or structure 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, be found. (4) The Government may recover the costs of the removal or disposal from the proprietor of the brand of tobacco product which is mentioned in the tobacco advertisement or advertising structure removed under subsection (1) or from the owner of such advertisement or structure. (Added 93 of 1997 s. 16) Cap 371 s 15 Offences under Part IV (1) Any person who contravenes section 11(1), 12(1), 13, 13A or 13B commits an offence and is liable on summary conviction to a fine at level 4 and, in the case of a continuing offence, to a further penalty of $1500 for each day during which the offence continues. (Amended 9 of 1992 s. 13; 93 of 1997 s. 17) (2) In any proceedings for a contravention of section 11(1) it shall be a defence for the person charged to prove that the advertisement to which the proceedings relate was printed or published in such circumstances that he did not know and had no reason to believe he was taking part in the printing or publication thereof. Cap 371 s 15A Prohibition on selling or giving of tobacco products, etc. PART IVA PROHIBITION ON SELLING OR GIVING OF TOBACCO PRODUCTS (Amended 93 of 1997 s. 18) (1) No person shall sell any cigarette, cigarette tobacco, cigar or pipe tobacco to any person under the age of 18 years. (2) No person shall, for the purposes of promotion or advertisement, give any cigarette, cigarette tobacco, cigar or pipe tobacco to any person. (Amended 93 of 1997 s. 19) (3) No person shall- (a) sell, offer for sale or give a tobacco product to any person in exchange for a token; (b) give to any person a tobacco product as a prize in any event or competition; (c) give valuable consideration to any individual in order to induce him to buy a particular tobacco product or otherwise to promote to him that tobacco product; (d) sell, offer for sale or possess for the purposes of sale a tobacco product which includes or is accompanied by a gift; (e) sell, offer for sale or possess for the purposes of sale a tobacco product which includes or is accompanied by a token, stamp or raffle ticket, which may be exchanged for a gift, prize or discount on any product; (f) sell, offer for sale or possess for the purposes of sale a non-tobacco product which includes or is accompanied by a tobacco product as a gift; or (g) give to any person any object which contains the name or trade name of any person associated with the marketing of cigarettes, cigarette tobacco, cigars or pipe tobacco or contains any trade mark or brand name of a tobacco product or any pictorial device or part thereof commonly associated therewith, and which is intended to be shown in public. (Added 93 of 1997 s. 19) (Added 91 of 1994 s. 15) Cap 371 s 15B Display of sign when offering tobacco products for sale, etc. (1) Any person offering for sale, or promoting the sale, purchase, smoking or use of, cigarettes, cigarette tobacco, cigars or pipe tobacco shall place and keep in place in a prominent position at his premises or at the place of promotion a sign in English and Chinese to indicate that no cigarette, cigarette tobacco, cigar or pipe tobacco may be sold to any person under the age of 18 years or given to any person. (Amended 93 of 1997 s. 20) (2) A sign required by subsection (1) shall be of the prescribed description and shall be maintained in legible condition and good order by the person offering for sale, or promoting the sale, purchase, smoking or use of, cigarettes, cigarette tobacco, cigars or pipe tobacco. (Added 91 of 1994 s. 15) Cap 371 s 15C Offences under Part IVA (1) Any person who contravenes section 15A or 15B commits an offence and is liable on summary conviction to a fine at level 4. (2) It shall be a defence to a charge under section 15A of selling any cigarette, cigarette tobacco, cigar or pipe tobacco to a person under the age of 18 years to prove that at the time the offence is alleged to have been committed, the person charged inspected an identity card or passport purporting to be the identity card or passport of the person under the age of 18 years and believed on reasonable grounds that such person was not under the age of 18 years. (Amended 93 of 1997 s. 21) (Added 91 of 1994 s. 15) Cap 371 s 15D Interpretation For the purposes of this Part "promotion or advertisement" (推广或宣传) means a promotion or advertisement intended as an inducement to purchase, smoke or encourage the use of cigarettes, cigarette tobacco, cigars or pipe tobacco, whether or not with reference to a particular brand. (Added 91 of 1994 s. 15) Cap 371 s 16 Evidence of tar and nicotine yields PART V SUPPLEMENTARY (1) The Government Chemist may from time to time analyse any cigarette for the purpose of determining its tar and nicotine yields for the purposes of this Ordinance and may publish the result of any such analysis. (2) The determination of the Government Chemist under subsection (1) as published by him shall be evidence of the tar and nicotine yields of the brand of cigarettes from which the cigarette analysed was taken subject to such conditions or limitations as may be prescribed; and any publication purporting to be a determination so published shall be deemed to be such a determination unless and until the contrary is proved. (3) The power of a member of the Customs and Excise Service to take samples of any goods to which the Dutiable Commodities Ordinance (Cap 109) applies conferred by section 11(1)(d) of that Ordinance shall extend to the taking of samples of cigarettes for analysis by the Government Chemist for the purposes of this section. (Amended 93 of 1997 s. 22) Cap 371 s 16A Amendment of Schedules The Secretary for Health, Welfare and Food may by order published in the Gazette amend the Schedules. (Added 9 of 1992 s. 14. Amended 80 of 1997 s. 22; L.N. 106 of 2002) Cap 371 s 17 (Had its effect) (Had its effect) Cap 371 s 18 Regulations and Orders Remarks: Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive in Council may make regulations for all or any of the following matters- (Amended 60 of 2000 s. 3) (a) prescribing anything required or permitted to be prescribed under this Ordinance; (b) prescribing the manner in which the tar and nicotine yields of a cigarette are to be determined; (Replaced 93 of 1997 s. 23) (c) requiring notification of anything done by any person which may be relevant to the tar and nicotine yields of cigarettes and imposing penalties not exceeding a fine at level 3 for a failure to comply with such requirement; (Amended 9 of 1992 s. 15) (d) excepting any tobacco advertisement from the provisions of Part IV either absolutely or subject to such exceptions as may be prescribed; and (e) for the better carrying into effect of this Ordinance.(2) Subject to the regulations, the Secretary may by order in the Gazette prescribe- (Amended L.N. 14 of 1983) (a) the form of any notice that smoking is prohibited, any health warning or any tar and nicotine yields where the form is required or permitted to be prescribed under this Ordinance; (b) the manner in which any such notice, warning or yields is to be displayed. (Amended 93 of 1997 s. 23) Cap 371 Sched 1 PUBLIC TRANSPORT CARRIERS WHERE SMOKING IS PROHIBITED [section 2] Item Type of carrier 1. A public bus operated under a franchise granted under the Public Bus Services Ordinance (Cap 230). 2. A public bus operated under a passenger service licence for the purposes of- (a) a tour service; (b) an international passenger service; (c) a hotel service; (d) a student service; (e) an employees' service; (f) a residents' service; (g) a multiple transport service; or (h) any other service approved by the Commissioner for Transport, under the Road Traffic Ordinance (Cap 374) other than when hired to any person under regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap 374 sub. leg.). 3. A public light bus within the meaning of the Road Traffic Ordinance (Cap 374) other than when hired to any person under regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap 374 sub. leg.). 4. A registered taxi within the meaning of the Road Traffic Ordinance (Cap 374) other than when hired to any person under regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap 374 sub. leg.). 5. A train operated on the Mass Transit Railway under the Mass Transit Railway Ordinance (Cap 556). (Amended 13 of 2000 s. 65) 6. A train operated on the Kowloon-Canton Railway under the Kowloon-Canton Railway Corporation Ordinance (Cap 372). 7. A light rail vehicle operated on the North-west Railway under the Kowloon-Canton Railway Corporation Ordinance (Cap 372). 8. A car used upon the tramway under the Tramway Ordinance (Cap 107) other than on a hire tramway service. 9. A tramcar used upon the tramway under the Peak Tramway Ordinance (Cap 265). 10. Those parts of a ferry vessel operated under a franchise or a licence granted under the Ferry Services Ordinance (Cap 104) opened, kept or used for or in connection with the carriage of passengers or to which the passengers have or are permitted to have access. (Added 9 of 1992 s. 16) Cap 371 Sched 2 DESIGNATED NO SMOKING AREAS [section 3] Item Type of area 1. Any area opened, kept or used for, or in connection with, the purpose of providing seating accommodation in a cinema, theatre or concert hall. 2. Any public lift. 3. Any amusement game centre. 4. (a) Any indoor area open to the public in a supermarket or bank. (b) Any indoor area open to the public in department stores or shopping malls, except the restaurant within a department store or a shopping mall. (Added 93 of 1997 s. 24) (Added 9 of 1992 s. 16) Cap 371 Sched 3 [sections 2 & 3] Item Agency Area 1. (Repealed 23 of 2002 s. 90) 2. Airport Authority Passenger terminal complex of the Airport as defined in section 2 of the Airport Authority Ordinance (Cap 483) (Added 93 of 1997 s. 25) (Added 68 of 1995 s. 40) Cap 371 Sched 4 PREMISES SPECIFIED UNDER SECTION 3(1B) THAT MAY BE DESIGNATED AS NO SMOKING AREAS [section 3] Item Premises 1. Restaurants. 2. Schools registered or provisionally registered under the Education Ordinance (Cap 279). 3. Post secondary colleges, technical colleges or technical institutes, industrial training centres or skills centres. 4. Universities. 5. The Hong Kong Academy for Performing Arts. (Added 93 of 1997 s. 26)
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