Ombudsman report a smoking gun on lax tobacco control

Judith Mackay recommends authorities seize the opportunity to enforce legislation against lighting up in bars and restaurants, which after all are workplaces

The Ombudsman's Report launched early this month is critical of the government in nine different areas for inadequately enforcing Hong Kong's existing smoke-free laws. As in many countries and regions, the greatest non-compliance is in restaurants and bars, particularly as in Hong Kong there is currently no legal onus for licensees to comply. This is in stark contrast to almost every other jurisdiction, including Singapore and Chinese mainland cities.

The reason for this goes back to the inadequacy of the 2007 smoke-free law, which penalizes only the smoker, but not the owners or managers of restaurants and bars, saunas, mahjong and tin kau premises. Even back in 2007, this was out of line with global wisdom, experience and trends. So why did Hong Kong do this? It is common knowledge this was due to pressure from a certain political party - that they would support the 2007 law only if managers were not held responsible.

Pressure on the government also came from the Entertainment Business Rights Concern Group, which indicated that such establishments "face a crushing blow, with an estimate of 2,600 entertainment establishments facing a crisis of closure of business, and the 'rice bowls' of some 100,000 employees are in jeopardy". All of which, of course, proved to be complete nonsense - the opposite happened, restaurant tax returns increased 31 percent in the two years following the ban.

This has led to the current situation in Hong Kong where some managers even collude with smoking patrons, warning them to "stub out" and hide ashtrays when Tobacco Control officers are seen approaching. And, to compound the problem, the Ombudsman found night-time enforcement was particularly lacking at the most relevant time for the offences to occur, with less than two raids per evening shift throughout the year 2016.

The current administration inherited this deeply flawed law, but hitherto has neither attempted to amend Hong Kong's tobacco law via the Legislative Council (a daunting task nowadays) nor turned to simple solutions such as enforcing the Conditions to the Liquor Licensing Board by fining licensees where tobacco is consumed on their premises or, for repeat offenders, closing the premises.

In theory, this should not even require any amendment to the liquor licensing law which currently stipulates that: "The licensee shall not permit any person to occupy or use any portion of the premises for any immoral or illegal purpose." This clearly includes the illegal act of smoking in legally designated smoke-free areas but many licensees have failed to uphold the law.

Two of the Ombudsman's 11 recommendations relate to this problem, stating that the government should review licensing conditions, and "impose criminal liabilities on those venue managers who acquiesce to or condone illegal smoking on their premises". If this is done, then many of the other recommendations would become less necessary as enforcement agents would effectively grow by 8,075 (the number of bar licensees) at no extra cost to the government! Licensees are already obliged to prevent drunkenness, disorder and prostitution in their premises, none of which kill people in remotely the numbers which second-hand tobacco smoke does.

If this is not done, there will be endless and expensive escalation of the number of Tobacco Control officers.

This is labor legislation. Patrons are in restaurants and bars for a relatively short time compared with workers in these establishments. Given the proven harm of tobacco smoke on non-smokers, it is disgraceful that some employers have such disregard for their employees that they continue to thwart the law, and expose their own staff to known cancer-producing chemicals.

I have been privileged to work closely with authorities on the mainland on national and city smoke-free legislation, particularly in Shenzhen, Beijing and Shanghai. At every opportunity, I impressed on these cities not to adopt Hong Kong's legislation but to fine managers as well as smokers. This advice was taken, and these cities' legislation is now much better than Hong Kong's.

In Hong Kong, this report is an opportunity for the government to grasp this political nettle once and for all, and do two things: first, immediately amend/enforce the liquor licensing conditions and second and simultaneously start the process to amend the legislation. The government has a duty of care to protect people's health. Second-hand smoke kills. It has been proven far too many times! The government knows the deadly consequence of further delays!