Hong Kong’s top court has maintained a ruling that “smoke cakes” used to create effects for photo shoots and theatrical productions can be considered explosives under a criminal offence punishable by 14 years in prison. Appellant Kwan Ka-hei had challenged the definition after becoming the first person in the city to be found guilty of possessing an explosive substance under Section 55 of the Crimes Ordinance over a pyrotechnic item. But the Court of Final Appeal on Thursday dismissed the bid to clear his name, with five judges unanimously finding two lower courts were correct in borrowing the definition of “explosive” from the Dangerous Goods Ordinance. The case arose from a stop and search police conducted at Admiralty Centre on December 16, 2015, when lawmakers at the nearby Legislative Council were debating a controversial copyright bill some believed would affect online freedoms, dubbed “Internet Article 23”. Kwan was jailed for three months in December 2016 over the 16 smoke cakes found in his backpack. These smoke cakes – made of potassium chlorate and ammonium chloride in equal proportions – emit a large volume of fumes when ignited. While there was no evidence the pyrotechnic item could explode, a government expert noted that severe overexposure could cause lung damage, unconsciousness and even death. Student caught with ‘smoke cakes’ near Legco protest given three-month jail term Defence counsel Charlotte Draycott SC had argued it would be “quite wrong” for the court to apply the definition from the Dangerous Goods Ordinance, which classified substances with pyrotechnic effect as explosives, to the Crimes Ordinance, as the two pieces of legislation were not equal. The former was enacted to provide a regulatory licensing regime that could punish offenders with up to six months in jail, while the latter was penal legislation designed to protect against dangerous explosions, with prison terms of up to 14 years. But Mr Justice Andrew Cheung Kui-nung observed that this only meant the two ordinances “form different parts of a complete code covering, regulating and controlling the manufacture, possession, custody or use of explosive substances in Hong Kong”. “The subject matters … obviously overlap,” he explained in a 22-page judgment backed by Chief Justice Geoffrey Ma Tao-li and justices Robert Ribeiro, Joseph Fok and Murray Gleeson. “It is reasonable to assume that there is continuity of legislative approach and uniformity in the use of language so that the same word ‘explosive’ bears the same meaning under the two ordinances.” Cheung also observed that the legislature had obviously intended to give the term “explosive substance” an “expansive meaning” under the Crimes Ordinance, and that the word “explosion” was not used at all in Section 55, which punishes possession unless it is shown to be for a lawful purpose. “One simply cannot use a narrow, layman’s concept of what an ‘explosive substance’ is to understand what is covered by the provisions,” Cheung said.