Try convincing my lungs and nasal passages, it isn't Assault. Yes, it might sound melodramatic, but I judge on the spirit of the Law, not the letter. With all the widespread knowledge of the damage caused by smoking to people's health, anyone that smokes close to a stranger clearly has no regard for that person, so in my mind is quite likely to commit premeditated violence in other circumstances. Its noticable that there used to be a pattern with unprovoked attacks (including murder) late at night, that the media would report that the attacker approached the victim and asked for "a light".
Just to clarify recordable and non recordable concerns the recording of the offend*er*, not he offence. ie. It isn't used to suggest that "minor" offences don't actually exist.