Fixed Penalty (Smoking Offences) Ordinance


Published: 2009-09-01

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Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 1

Chapter: 600 FIXED PENALTY (SMOKING OFFENCES)
ORDINANCE

Gazette Number Version Date


Long title L.N. 109 of 2009 01/09/2009


An Ordinance to provide for a fixed penalty to be payable for certain offences in contravention of the Smoking (Public
Health) Ordinance; for the recovery of the fixed penalty; and for related matters.


[1 September 2009] L.N. 109 of 2009


(Originally 26 of 2008)

Part: 1 PRELIMINARY L.N. 109 of 2009 01/09/2009




Section: 1 Short title and commencement 02/09/2009


(1) This Ordinance may be cited as the Fixed Penalty (Smoking Offences) Ordinance.
(2) (Omitted as spent)


Section: 2 Interpretation L.N. 109 of 2009 01/09/2009


(1) In this Ordinance, unless the context otherwise requires—
“fixed penalty” (定額罰款), in relation to a scheduled offence, means the fixed penalty set out in column 4 of the

Schedule opposite to the offence;
“proceedings” (法律程序) means proceedings before a magistrate in respect of a scheduled offence;
“scheduled offence” (表列罪行) means an offence prescribed by a provision of the Smoking (Public Health)

Ordinance (Cap 371) specified in column 2 of the Schedule.
(2) A description in column 3 of the Schedule indicates for convenience of reference only the general nature of

the offence under the provision specified in column 2 of the Schedule opposite to that description.
(3) In applying a provision of this Ordinance in relation to a scheduled offence—

(a) a reference to “Authority” in that provision shall be construed as a reference to a person specified by
the Secretary for Food and Health as the Authority by notice under section 17(1)(a); and

(b) a reference to “public officer” in that provision shall be construed as a reference to a public officer
or a member of a class of public officers specified by the Secretary for Food and Health by notice
under section 17(1)(b).


Part: 2 FIXED PENALTY L.N. 109 of 2009 01/09/2009




Section: 3 Fixed penalty notice given by public officer L.N. 109 of 2009 01/09/2009


(1) If a public officer has reason to believe that a person is committing or has committed a scheduled offence,
he may give the person a notice in the prescribed form offering him an opportunity to discharge his liability to
conviction for the offence by payment of the fixed penalty for the offence within 21 days from the date of the giving
of the notice.

(2) A notice under subsection (1) shall be given by the public officer personally to the person.
(3) Subject to section 7, where a person has received a notice under subsection (1) and has paid the full amount

of the fixed penalty shown in the notice within the period referred to in the that subsection, he shall not be liable to be
prosecuted or convicted for the scheduled offence specified in the notice.




Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 2

Section: 4 Power of inspecting proof of identity L.N. 109 of 2009 01/09/2009


(1) If a public officer has reason to believe that a person is committing or has committed a scheduled offence,
he may, for the purposes of—

(a) serving any document under this Ordinance on the person; or
(b) issuing a summons in respect of the offence,

require the person to supply his name, address and contact telephone number (if any) and produce proof of identity for
inspection.

(2) A person who, without reasonable excuse, fails to comply with a requirement made under subsection (1)
commits an offence and is liable on conviction to a fine at level 3.

(3) A public officer may arrest a person who, without reasonable excuse, fails to comply with a requirement
made under subsection (1).

(4) Without prejudice to the generality of section 51 of the Police Force Ordinance (Cap 232), a public officer
who arrests any person under subsection (3) shall forthwith take him to the nearest police station or deliver him into
the custody of a police officer.

(5) In this section, “proof of identity” (身分證明文件), in relation to the person as referred to in subsection
(1), has the same meaning as in section 17B of the Immigration Ordinance (Cap 115).

Section: 5 Supply of false information L.N. 109 of 2009 01/09/2009


A person who, in purported compliance with a requirement made under section 4(1), supplies any particular of
his name, address or contact telephone number which he knows to be false or misleading commits an offence and is
liable on conviction to a fine at level 3.

Section: 6 Further fixed penalty notice served by Authority L.N. 109 of 2009 01/09/2009


(1) This section applies where a person—
(a) having been given a notice under section 3(1) has not paid the fixed penalty for the scheduled offence

specified in the notice within the period referred to in that section; or
(b) refuses to accept a notice intended to be given to him under section 3(1) in respect of a scheduled

offence.
(2) Where this section applies, the Authority shall serve on the person a notice in the prescribed form—

(a) demanding payment of the fixed penalty for the scheduled offence;
(b) informing the person that if he wishes to dispute liability for the offence he should notify the Authority

in writing; and
(c) stating that the payment or notification (as the case may be) shall be made within 10 days from the date

of the notice so served.
(3) A notice under subsection (2) shall be served—

(a) where subsection (1)(a) applies, within 6 months from the date of the notice given under section 3(1);
and

(b) where subsection (1)(b) applies, within 6 months from the date on which the person refuses to accept
the notice.

(4) A notice under subsection (2) may be served on the person by sending it by post to his address.
(5) Subject to section 7, where a person has received a notice under subsection (2) and has paid the full amount

of the fixed penalty shown in the notice within the period referred to in subsection (2)(c), he shall not be liable to be
prosecuted or convicted for the scheduled offence specified in the notice.

Section: 7 Withdrawal of notice of fixed penalty L.N. 109 of 2009 01/09/2009


(1) Where a notice under section 3(1) has been given to a person, the Authority may, at any time before the
commencement of any proceedings against the person in respect of the scheduled offence specified in the notice—

(a) withdraw that notice; and
(b) serve on that person another notice in writing informing him that the notice under section 3(1) has been

withdrawn.



Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 3

(2) Where a notice under section 6(2) has been served on a person, the Authority may, at any time before the
commencement of any proceedings against the person in respect of the scheduled offence specified in the notice or,
where an order under section 8(1) has been applied for, before such order is made—

(a) withdraw that notice; and
(b) serve on that person another notice in writing informing him that the notice under section 6(2) has been

withdrawn.
(3) Where a notice under section 3(1) or 6(2) is withdrawn under this section and any sum of money has been

paid pursuant to the notice, the Director of Accounting Services shall, on demand by the person to or on whom the
notice was given or served, repay him the sum so paid.

(4) Where a notice under section 3(1) or 6(2) is withdrawn under this section, proceedings in respect of the
scheduled offence specified in the notice may only be commenced if—

(a) the ground, or one of the grounds, on which the notice is withdrawn is that it contains incorrect
information; and

(b) the incorrect information was supplied by the person to or on whom the notice was given or served.

Section: 8 Recovery of fixed penalty L.N. 109 of 2009 01/09/2009


(1) If a person served with a notice under section 6(2) has not paid the fixed penalty for the scheduled offence
specified in the notice or notified the Authority that he wishes to dispute liability for the offence in accordance with
the notice, a magistrate shall, upon an application made in the name of the Secretary for Justice, order him to pay
within 14 days from the date of service of notice of the order—

(a) the fixed penalty;
(b) an additional penalty equal to the amount of the fixed penalty; and
(c) the sum of $300 by way of costs.

(2) An application under subsection (1) may be made in the absence of the person on whom the notice under
section 6(2) has been served and the Secretary for Justice may appoint any person or class of persons to make the
application.

(3) Where an order is made under subsection (1) against a person, the magistrate shall cause notice of the order
to be served on the person.

(4) A notice under subsection (3) may be served on the person by sending it by post to his address.
(5) Where a person against whom an order under subsection (1) has been made fails to comply with the order,

he shall, for the purposes of section 68 of the Magistrates Ordinance (Cap 227), be deemed to have failed to pay the
sum adjudged to be paid by a conviction and shall be liable to be imprisoned under that section.

(6) Where a person against whom an order under subsection (1) has been made has complied with the order, he
shall not be liable to be prosecuted or convicted for the scheduled offence to which the order relates.

Section: 9 Proof produced for application under section 8 L.N. 109 of 2009 01/09/2009


(1) Notwithstanding any provisions of the Magistrates Ordinance (Cap 227), in an application under section
8(1), an order under that section shall be made upon the production by the applicant to the magistrate of—

(a) a copy of the notice served under section 6(2) together with a certificate of posting of that notice under
section 29 of the Evidence Ordinance (Cap 8); and

(b) a certificate referred to in subsection (2).
(2) In an application under section 8(1), a certificate in the prescribed form stating the matters specified in

subsection (3) and purporting to be signed by or for the Authority shall be admitted in evidence without further proof
upon its production to the magistrate.

(3) The certificate referred to in subsection (2) shall state that—
(a) payment of the fixed penalty for the scheduled offence specified in a notice under section 6(2) was not

made before the date of the certificate;
(b) the person specified in the certificate had not, before the date of the certificate, notified the Authority

that he wished to dispute liability for the scheduled offence; and
(c) the address specified in the certificate was, at the date specified in the certificate in relation to the

address, the address of the person.
(4) Unless there is evidence to the contrary—



Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 4

(a) it shall be presumed that the certificate referred to in subsection (2) is signed by or for the Authority;
and

(b) the certificate shall be evidence of the facts stated in it.

Section: 10 Review of order L.N. 109 of 2009 01/09/2009


(1) Where a magistrate is satisfied that a notice served under section 6(2) has not come to the personal notice of
the person to whom it relates without any neglect by that person, the magistrate may, upon an application by that
person, rescind the order made under section 8(1) in respect of the notice.

(2) A person who makes an application under subsection (1) shall give reasonable notice of the application to
the Authority who served the notice under section 6(2) in respect of which the order was made.

(3) Upon rescinding the order under subsection (1), the magistrate may—
(a) if the person wishes to dispute liability for the scheduled offence to which the order relates, give leave

to that effect; or
(b) if the person does not wish to dispute liability for the scheduled offence—

(i) order him to pay the fixed penalty concerned within a period of 10 days; and
(ii) order that, if he fails to pay the fixed penalty within that period, he shall pay immediately the

fixed penalty, an additional penalty equal to the amount of the fixed penalty and the sum of $300
by way of costs.

(4) An application under subsection (1) may be made in person or by counsel or solicitor on behalf of the
applicant, and the magistrate, for the purpose of securing the attendance of witnesses and generally for conducting the
proceedings, shall have all the powers of a magistrate hearing a complaint under the Magistrates Ordinance (Cap 227).

(5) An application under subsection (1) shall be made within 14 days from the date that the magistrate is
satisfied to be the earliest date on which the order made under section 8(1) came to the personal notice of the person to
whom that order relates.

(6) Where a magistrate gives leave under subsection (3)(a), proceedings may be taken, notwithstanding section
26 of the Magistrates Ordinance (Cap 227), within 6 months from the date on which the magistrate gives the leave.

(7) A magistrate may for good cause, upon an application by the Authority at any time, rescind any order for
the payment of a fixed penalty and any other order made in the same proceedings.

(8) Where a person against whom an order under subsection (3)(b) has been made fails to comply with the
order under subsection (3)(b)(ii), he shall, for the purposes of section 68 of the Magistrates Ordinance (Cap 227), be
deemed to have failed to pay the sum adjudged to be paid by a conviction and shall be liable to be imprisoned under
that section.

(9) Where a person against whom an order under subsection (3)(b) has been made has complied with the order,
he shall not be liable to be prosecuted or convicted for the scheduled offence to which the order relates.

Section: 11 Service of summons of proceedings L.N. 109 of 2009 01/09/2009


Where a person—
(a) has notified the Authority, in accordance with a notice under section 6(2), that he wishes to dispute

liability for a scheduled offence; or
(b) has been given leave to dispute liability for the offence under section 10(3)(a),

then a summons issued in any proceedings against him in respect of the offence may be served on him in accordance
with section 8 of the Magistrates Ordinance (Cap 227).

Section: 12 Additional penalty imposed in proceedings on liability L.N. 109 of 2009 01/09/2009


(1) This section applies where a person—
(a) has notified the Authority, in accordance with a notice under section 6(2), that he wishes to dispute

liability for a scheduled offence; or
(b) has been given leave to dispute liability for the offence under section 10(3)(a),

and in consequence of the notification or leave, appears in any proceedings in answer to a summons.
(2) Where this section applies, if the person is convicted of the scheduled offence after having offered no

defence or a defence which is frivolous or vexatious, the magistrate before whom the proceedings are heard shall, in



Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 5

addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty for the
offence.

Section: 13 Payment of fixed penalty after issue of summons L.N. 109 of 2009 01/09/2009


(1) Notwithstanding that proceedings have been taken against a person who has notified the Authority in
accordance with a notice under section 6(2) that he wishes to dispute liability for a scheduled offence, if the person
pays the full amount of the fixed penalty for the offence together with an additional penalty equal to the amount of the
fixed penalty and the sum of $500 by way of costs in accordance with subsection (2), the proceedings shall then
terminate.

(2) Payment under subsection (1) shall be made at any magistracy not less than 2 days before the day specified
in the summons for the person's appearance, and the summons shall be produced at the time of payment.

(3) No public holiday shall be included in the computation of the 2 days' period mentioned in subsection (2).

Part: 3 MISCELLANEOUS L.N. 109 of 2009 01/09/2009




Section: 14 Protection for public officers acting in good faith L.N. 109 of 2009 01/09/2009


(1) A public officer shall not be personally liable in respect of any act done by him while exercising any of his
powers under this Ordinance and within the scope of his employment, if he did that act in the honest belief that he was
entitled to do it.

(2) Nothing in this section shall be construed as relieving the Government from liability in respect of the acts of
public officers.

(3) In this section, “public officer” (公職人員) includes a person specified as the Authority under section
17(1)(a).

Section: 15 Obstruction of public officers L.N. 109 of 2009 01/09/2009


A person who resists or wilfully obstructs a public officer exercising his powers under this Ordinance commits
an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.

Section: 16 Power to make regulation L.N. 109 of 2009 01/09/2009


The Secretary for Food and Health may by regulation—
(a) prescribe any notice or certificate which under this Ordinance is to be or may be prescribed;
(b) specify the persons to whom and the places at which a fixed penalty, an additional penalty or any other

sums payable under this Ordinance may be paid;
(c) specify the manner of payment of a fixed penalty, an additional penalty or any other sums payable

under this Ordinance; and
(d) provide for the better carrying out of the provisions of this Ordinance.


Section: 17 Specification of Authority and public officer L.N. 109 of 2009 01/09/2009


(1) The Secretary for Food and Health may, for the purposes of this Ordinance and in relation to a scheduled
offence, specify by notice published in the Gazette—

(a) the Authority; and
(b) a public officer or a class of public officers.

(2) A notice under subsection (1) is subsidiary legislation.

Section: 18 Revision of fixed penalty L.N. 109 of 2009 01/09/2009


The Legislative Council may by resolution vary the fixed penalty in relation to a scheduled offence.




Cap 600 - FIXED PENALTY (SMOKING OFFENCES) ORDINANCE 6

Section: 19 (Omitted as spent) 02/09/2009




Schedule: SCHEDULE L.N. 109 of 2009 01/09/2009


[section 2]


SCHEDULED OFFENCE


Item


Provision of the Smoking
(Public Health) Ordinance


Description


Fixed Penalty

1. Section 7(1) Smoking in areas designated as no smoking
areas or in public transport carriers

$1500

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