Ho Yau Yin was holding a lighted cigarette on a restaurant premises when spotted by smoking inspectors. Ho was convicted and fined by the trial court. Ho appealed to the Court of Final Appeal, arguing that he was not smoking "indoors" because the part of the premise on which he was smoking was not enclosed enough to be considered "indoors. The Court found that, in order for a premise to be considered "indoors" under the law, the area must be enclosed at least 50% on each side and dismissed Ho's appeal. However, the Court refused to restore the conviction due to the length of time that the appeal was pending and the lack of sufficient evidence against Ho.
HKSAR v. Ho Yau Yin, [2010] Legal Reference System, Court of Final Appeal (2010).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"It may be argued that the use of the phrase “on all sides” rather than “of all sides” tends to support the Judge’s conclusion. But this
gives insufficient weight to the 50% applying to the “total” area on all sides. It would have been better for para (b) to have used the phrase “of
all sides” rather than “on all sides”. But construing the phrase in the light of the context and purpose, there is no ambiguity in its meaning. Its natural and ordinary meaning is that for an area to be “indoor”, at least 50% of the total area of all sides must be enclosed, irrespective of how the enclosed area is distributed among the various sides."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Ho Yau Yin was holding a lighted cigarette on a restaurant premises when spotted by smoking inspectors. Ho was convicted and fined by the trial court. Ho appealed to the Court of Final Appeal, arguing that he was not smoking "indoors" because the part of the premise on which he was smoking was not enclosed enough to be considered "indoors. The Court found that, in order for a premise to be considered "indoors" under the law, the area must be enclosed at least 50% on each side and dismissed Ho's appeal. However, the Court refused to restore the conviction due to the length of time that the appeal was pending and the lack of sufficient evidence against Ho.