Effective 01 January 2019: No-smoking in all eating places in malaysia

Today, 1st of January 2019, the Control of Tobacco Product (Amendment) Regulations 2018 come into operation. Effectively, it means smoking is now prohibited in all eating places in Malaysia.

Prohibition on smoking
The Control of Tobacco Product (Amendment) Regulations 2018, read together with the Control of Tobacco Product Regulations 2004 (as amended), provides, inter alia, that no person shall smoke in any eating place or air-conditioned shop.

Definition of "eating place"
The definition of "eating place" has been inserted by the Control of Tobacco Product (Amendment) Regulations 2018 to mean any premises, whether inside or outside building, where food is prepared, served or sold. This includes, but is not limited to, the following:-

1. any room or area on a ship or train where food is prepared, served or sold;
2. any area on a vehicle where food is prepared, served or sold, and any surrounding area within a radius of three (3) metres from the vehicle; and
3. any area within a radius of three (3) metres from any table or chair which is placed for the purpose of preparing, serving or selling food.

Duty of proprietor or occupier of the premises or vehicle
The proprietor or occupier of the premises or vehicle, or rather the restaurant owner or the owner of the "eating place", shall at all times display a sign as specified in the Regulations with regards to the prohibition of smoking at any conspicuous part of the premises or vehicle.

​The said proprietor or occupier also has a duty to ensure that no one smokes in the "eating place".

Criminal offence
The proprietor or occupier commits a criminal offence if he fails to display a no-smoking sign. This can result in a criminal conviction with a fine not exceeding three thousand ringgit (RM3,000.00) or imprisonment for a term not exceeding six (6) months.

As for the second duty, a criminal offence is committed if the proprietor or occupier fails to ensure that no one smokes in the "eating place", which can result in a fine not exceeding five thousand ringgit (RM5,000.00) or imprisonment for a term not exceeding one (1) year.

Defence for the proprietor or the occupier?
When the proprietor or the occupier of an "eating place" is charged with an offence for failure to ensure that no one smokes in the "eating place", the Regulations provides for a defence for the person so charged to prove that he has taken all reasonable steps to ensure that no one smokes in the "eating place".

Conclusion
Although the new Amendments, which has now come into operation, mean that the non-smoking areas have increased in Malaysia, they do not deprive the smokers of their individual right to smoke. The Regulations (as amended) are merely meant to regulate such individual right of the smoker as to where he can, and cannot, smoke.