A university student was sentenced to three months in jail on Wednesday after he was found with around one kilogram of “smoke cakes” near a demonstration at the Legislative Council Complex in December 2015.

Handing down the sentence at the Eastern Magistrates’ Courts, Deputy Magistrate Jacky Ip Kai-leung said that the jail time was short and “not the end of the world,” RTHK reported.

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Kwan Ka-hei.

‘War games’ claim

Open University of Hong Kong student Kwan Ka-hei, 21, was convicted last December of possessing an explosive substance, an offence under the Crimes Ordinance.

Kwan was caught with 16 yellow discs containing potassium chlorate, which emits smoke when ignited. The court heard that when Kwan was confronted by police, he said he had not known what the discs were. He later told Detention Centre officers that the discs were intended to be used during a war game that he was planning to attend on the day of arrest.

Ip said that Kwan had never mentioned the second version of the events during the trial, and even if he had, it would have meant that he had known about the nature of the discs, according to Apple Daily.

Counsel for Kwan pleaded in mitigation that Kwan had already had a taste of life in prison during his two-week detention, which was a “horrible experience” for him. The student was also concerned that he would face negative peer influence in prison.

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“Smoke cake” (R) and other evidence collected by the police. File Photo: i-cable screenshot.

But the magistrate rejected the plea, saying that Kwan could decide whom to befriend in prison and fearing bad influence from fellow prisoners did not justify a suspended sentence. He added that the background report suggested Kwan displayed only “superficial remorse” over the offence.

Definition of explosives

During the trial, there was a lengthy debate as to whether the smoke cakes amounted to explosives as defined by Hong Kong laws. The Dangerous Goods Ordinance defines explosives as substances “used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect.”

An expert witness testified that the smoke cakes had a pyrotechnic effect and therefore amounted to “explosives” under the law. But counsel for Kwan argued at the time that the witness, summoned by the prosecution, arrived at the conclusion before analysing the chemical composition of the smoke cakes.

A second expert witness from the Explosive Ordnance Disposal Bureau tested Kwan’s smoke cakes and concluded that they could not explode, Apple Daily reported.

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Protests on December 16, 2015. File Photo: HKFP.

Ip eventually ruled that the chemicals were dangerous enough to constitute a crime in the Crimes Ordinance. He described the offence of possessing explosive substances as “serious” and that the law imposes a harsh sentencing over such cases.

In late 2015, hundreds of people gathered at the Legislative Council demonstration area to protest a controversial copyright bill. They were concerned that using copyrighted works – even if just for personal use and not for profit – could lead to a criminal investigation if the bill was passed.

A week before Kwan was arrested, some protesters set fire to a rubbish bin at the Legislative Council Complex, causing a small explosion. Following the incident, police stepped up security measures. Six young people – including a former auxiliary police officer – were subsequently apprehended in connection with the fire.

Ellie Ng has written for Foreign Policy, the Daily Telegraph, Global Voices Online and others.