A. Spitting

A. Spitting 

Under section 4(2) of the Summary Offences Ordinance (Cap. 228), a person commits an offence if, without lawful authority or excuse, he spits in or into any public place, vehicle, ferry, or building to which the public have access, unless he spits into a receptacle or channel provided for sewage, sullage or wastewater. The penalty for the offence is a fine of $2,000 and imprisonment for 3 months. 

In addition, section 8A(1) of the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK) prohibits a person from spitting in or into any street or public place. 

Spitting by children and criminal responsibility 

Where the person who spits is a child, doli incapax is applicable. A child below the minimum age of criminal responsibility (i.e. 10 years old) cannot be convicted of an offence. In addition, for children aged 10 or above and below 14, there is a presumption that the child is incapable of committing a criminal offence unless the prosecution proves that the child knew that the act was seriously wrong, and not merely naughty or mischievous. 

Accordingly, depending on the child’s age and the evidence, a child who spits in a public place may not necessarily be criminally liable, even though the act itself falls within the prohibition against spitting. 

Liability of persons having custody or care of a child 

However, this does not relieve the adult or other person who has custody or care of the child from liability. Section 8A(2) of the Public Cleansing and Prevention of Nuisances Regulation creates a separate offence. It provides that a person who has the custody or care of a child under the age of 12 must not, without reasonable cause, permit the child to spit in or into any street or public place. 

Therefore, even if the child is not guilty because of age, lack of criminal responsibility, or doli incapax, the person having custody or care of the child may still be guilty if that person permitted the child to spit without reasonable cause. The adult cannot avoid liability simply by saying that:  

• the child was too young to commit an offence; 
• the child, not the adult, did the spitting; 
• the child did not understand that spitting was wrong; or 
• the child cannot be prosecuted or convicted. 

The relevant question for the adult’s liability is whether the adult had custody or care of the child, whether the child was under 12, whether the child spat in a street or public place, and whether the adult, without reasonable cause, permitted that to happen. 

Penalties and fixed penalty notice 

A contravention of section 8A(1) or section 8A(2) of the Public Cleansing and Prevention of Nuisances Regulation is punishable by a fine of $5,000 on a first conviction and a fine of $10,000 on a second or subsequent conviction. 

Alternatively, a public officer can issue a fixed penalty notice of $3,000 to the offender. For more information about the fixed penalty notice, please refer to “Fixed penalty for public cleanliness and obstruction offences”.