The Court of First Instance yesterday cleared the way for the government to ask Hong Kong's highest court to define "indoor" in the anti-smoking law to avoid further legal tussles with smokers.

Judge Louis Tong Po-sun granted leave to take the case to the Court of Final Appeal to decide if "indoor" has to be premises that are enclosed at least up to 50 percent of the total area on each side.

But Tong said he did not think the material used for the enclosure was relevant, so he had reservations about taking that particular point to the top court for interpretation.

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Senior Assistant Director of Public Prosecutions Patrick Cheung Wai-sun told the judge that 100 cases are now on hold, pending the interpretation.

Cheung also argued that the legislative intent under the Smoking (Public Health) Ordinance was that premises with enclosures on three sides should be covered within the definition of "indoor."

The Department of Health said it welcomed the lower court's decision.

The government, however, is not seeking to overturn the result of an appeal which quashed the conviction against hawker- control officer Ho Yau-yin. Last year, Ho was seen by a tobacco control inspector smoking in the extended area of a restaurant in Sham Tseng village, Tsuen Wan, which was enclosed by plastic curtains on two sides.

Ho was found guilty but had his conviction overturned on appeal. Ho said he had smoked there before, and was never told it was a no-smoking zone. Staff even provided him with an ashtray.

The inspector recalled telling the restaurant manager during a previous inspection that if the plastic curtains were lowered, the area would be considered "indoor" and therefore a no-smoking zone.

A magistrate's court convicted Ho of carrying a lighted cigarette in a designated no-smoking area. Ho appealed and was acquitted this month by Tong, who ruled that an area can only be considered "indoor" when 50 percent of the total area is enclosed.

The judge rejected the government's interpretation that an area should be considered "indoor" if at least two sides are enclosed.