On 15 December 2025, the Court of First Instance of the High Court of Hong Kong handed down a monumental 855-page judgment in the case of HKSAR v Lai Chee Ying [2025] HKCFI 6291 (“Jimmy Lai Judgment”). While the vast majority of the decision serves as a meticulous fact-finding exercise regarding the complex evidentiary record, the jurisprudential core of the ruling resides in Chapters 2 and 29. It is in these chapters that the Court addresses the legal controversies surrounding the charges of collusion with foreign forces provided in Article 29 of the Hong Kong National Security Law (“HKNSL”) and sedition provided in Sections 9 & 10 of the then Crimes Ordinance (now replaced by Sections 23 – 26 of the Safeguarding National Security Ordinance). A close reading of these chapters reveals a judicial approach marked by distinct strengths in legal methodology, critical weaknesses regarding rights protection, and looming uncertainties for the future of Hong Kong’s common law system.

The Good: Methodological Rigour and Common Law Connectivity

Lai and his three newspaper companies faced three charges related to national security. On Count 1, the court found that the defendants published a series of seditious articles designed to incite hatred against the Central Authorities and the HKSAR government. For Counts 2 and 3, the ruling stated that Lai used his extensive foreign network to lobby senior US officials to impose sanctions and engage in other hostile activities against the PRC and Hong Kong.

The judgment is notable for its steadfast adherence to traditional common law interpretation methodologies, thereby ensuring that the HKNSL is navigated with technical precision. To interpret the elements of the collusion offence, the Court prioritized the “literal rule”, emphasising the ordinary meaning, purpose, and context of the statutory text [47]–[63]. This strict adherence to textual analysis is designed to enhance legal certainty and predictability, serving as a vital reflection of the rule of law.

Furthermore, the Court employed the “purposive rule” to analyze the legislative background, thereby defining key terms such as “hostile activities” and “request” to reject overly narrow defence interpretations [57]. This combination of textual and purposive analysis aligns with the Hong Kong courts’ historical approach to national security cases (see, for example, the Court of Final Appeal’s ruling in HKSAR v Tam Tak Chi [2025] HKCFA 4).

The Bad: Literalism Over Liberty

However, this technical adherence to text often appears to overshadow the substantive protection of fundamental rights. Despite the HKNSL explicitly mandating respect for human rights (Article 4) and the rule of law (Article 5), the judgment did not sufficiently elaborate on how these rights are to be balanced against security concerns at an operational level.  While the Court affirmed that it had taken rights protections and rule of law principles into account [57], its operative logic was heavily skewed toward the literal meaning of the provisions. This intense focus on literalism risks sidelining the robust human rights balancing exercises required in modern constitutional adjudication.

This issue is compounded by the judgment’s comparative analysis, which relied on the existence of “similar” national security laws in the UK, Australia, Canada, and Singapore [46]. This broad-brush approach largely ignored significant differences, especially when most of those jurisdictions do not criminalize the act of requesting foreign sanctions at all or in the same manner as the HKNSL. By failing to dissect these differences alongside the similarities, the Court missed a critical opportunity to clarify the boundary between criminal collusion and legitimate political expression under international human rights standards.

The Uncertain: The Appellate Horizon

The element of uncertainty lies in what comes next. The Court of First Instance has laid a foundation that is logically rigorous yet seemingly imbalanced regarding civil liberties. The judgment explicitly leaves room for exploration regarding the discourse on rights and comparative law. As the case potentially moves up the appellate ladder, the central question remains whether appellate courts will accept the lower court’s heavy reliance on literalism or if they will require a more substantive proportionality analysis. Until the appellate courts clarify whether the interpretation rules allow for a more generous accommodation of human rights, the precise boundaries of acceptable political conduct in Hong Kong remain in flux.

Finished Chapter, Unfinished Story

The Jimmy Lai judgment is a document of immense complexity. It is logically detailed and rooted in common law tradition, yet open to critique for its comparative analysis and rights protection. It represents a significant chapter in Hong Kong’s legal history, but it is unlikely to be the final one.

Similarities of Sabotage Provisions in HKNSL and SNSO

The first problem arises from the substantial overlap in the scope of protected objects. In the HKNSL, the public infrastructure to be protected is the means of transport, transport facilities, electric power or gas facility etc. (Article 24(1)(3) & (4) of the HKNSL). In the SNSO, the public infrastructure to be protected closely mirrors that of the HKNSL but extends to include any public infrastructure that belongs to or is occupied by the Central Authorities (section 49(4) of SNSO).

Second, in terms of actus reus, the sabotage offence in SNSO requires damaging or weakening of public infrastructure. Section 49(3) of the SNSO defines this broadly to include any act that causes the public infrastructure vulnerable to abuse or damage, causes it to be vulnerable to be accessed or altered, or not be able to function or operate as it should. In contrast, the definition of the actus reus of sabotage in HKNSL includes any acts that cause “grave harm to society”. It is arguable that acts involving damaging or weakening of public infrastructure, as set out in the SNSO, would also fall within the ambit of “grave harm to society” under the HKNSL. Therefore, despite differences in statutory language, the actus reus elements of sabotage under both laws may, in practice, substantially overlap, and allows the prosecution to cast a wide net when selecting which offence to charge.

Third, with respect to mens rea, sabotage in the HKNSL explicitly requires an intention to coerce the central or local government or to intimidate the public, for the purpose of pursuing a political agenda (Article 24 of the HKNSL). In contrast, the SNSO only requires an intention or recklessness as to whether national security would be endangered (section 49(1) & (2) of the SNSO). Notably, section 2 of the SNSO incorporates the definition of national security (the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security) in Article 2 of the National Security Law of the PRC into domestic legislation. Given the ambiguous nature of the definition of national security in SNSO, any mens rea satisfying sabotage under the HKNSL could also fall within the SNSO.

Implications on Prosecution Decisions

The differences between the protected objects, actus reus and mens rea of the sabotage provisions in the HKNSL and the SNSO are significant, not only on the level of legislative language but also in terms of sentencing and judicial safeguards. Under the SNSO, the imposition of life imprisonment for sabotage is only possible if the offence involves collusion with external forces, a requirement that is absent in the HKNSL. Furthermore, as domestic legislation, the SNSO is subject to judicial scrutiny by Hong Kong courts, which retain the power to review its compatibility with the protection of human rights. In contrast, this judicial safeguard is not available with regard to the HKNSL, which is a piece of national law of the PRC (See Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR [2023] HKCFI 1382, paras. 23 – 24).

In the United Kingdom, one of the safeguards against the abuse of the prosecution of sabotage is the requirement of foreign power condition (section 31(1) of the National Security Act 2023). In comparison, Hong Kong lacks an analogous safeguard, as collusion with external forces is not a mandatory element for sabotage. Given the significant overlap in the elements of sabotage under the HKNSL and the SNSO, the prosecution may enjoy a wide discretion in selecting between the HKNSL and the SNSO, and to pursue the charge most conducive to securing a conviction. It is therefore important for both the local and the international community to maintain vigilant oversight over the enforcement of sabotage provisions of Hong Kong, and to ensure that prosecution decision is only based on sufficiency of evidence and general public interest, as mandated by the Prosecution Code of the Department of Justice of the HKSAR.

In 2021, the Commissioner of Police issued formal notices to three representatives of the Alliance, mandating the disclosure of specific information pursuant to sections 3(1)–(3) of schedule 5 of the Implementation Rules for Article 43 of the Hong Kong National Security Law (the “Implementation Rules”). When the defendants refused to provide the information as requested, they were convicted and sentenced. Hence, the Alliance’s recent landmark victory in the Court of Final Appeal (the “CFA”), which quashed these convictions and sentences, represents a jurisprudential milestone that has elicited profound socio-political debate. This article demonstrates how the CFA applies common law interpretation methods to balance executive powers, even amidst increasing pressure from the Chinese and Hong Kong governments to prioritise national security safeguards.

Key Legal Issue Addressed in the Case

One critical question resolved in the case was: When the Commissioner of Police serves a written notice under sections 3(1)–(3) of schedule 5 of the Implementation Rules, requiring a foreign/Taiwan agent to provide specified information within a designated period and manner, must the Commissioner prove that the recipient is “factually” a foreign/Taiwan agent, or is it sufficient to demonstrate a “reasonable belief” that the recipient qualifies as such?

The Court’s Common Law-Based Interpretation

Consistent with Hong Kong courts’ longstanding approach to statutory interpretation, CFA dissected the elements of the Implementation Rules using common law principles. The Court concluded that the phrase “reasonably believes” in sections 3(1) of schedule 5 pertains only to the element of “necessity to prevent or investigate offences endangering national security”. In other words, the “reasonable belief” requirement does not extend to establishing whether the recipient is a foreign/Taiwan agent or whether a person is an office-bearer or manager of such an agent. In other words, the Commissioner must prove that the recipient of the notice is factually a foreign/Taiwan agent and that the person is factually an office-bearer or manager of such an agent. Mere “reasonable belief” is insufficient.

Furthermore, the CFA emphasised that when interpreting schedule 5 of the Implementation Rules, the Court also needed to consider schedule 7, as mandated by the common law principle to interpret statutes holistically. Section 2(4) of schedule 7 requires a judge to be satisfied that there are “reasonable grounds” to suspect a person possesses information or materials relevant to an investigation before granting an order for disclosure. By contrasting this “reasonable grounds” standard in schedule 7 with the absence of a “reasonable belief” requirement in schedule 5, the Court affirmed that schedule 5 imposes a more stringent burden of proof in establishing the factual basis of the recipient’s identity.

Balancing National Security and Human Rights in Judicial Practice

The CFA’s interpretation of schedules 5 and 7 thereby strengthens procedural safeguards afforded to individuals subject to such notices. Under schedule 7, an application for a disclosure order must be filed ex parte by the Secretary for Justice. Under  Hong Kong law, ex parte applications impose a continuous obligation of full and frank disclosure on the applicant, requiring the honest presentation of all material facts, including those adverse to their case. Furthermore, schedule 7 explicitly preserves the doctrine of legal professional privilege while excluding reliance on the privilege against self-incrimination.

This ruling serves as a compelling example of the Hong Kong courts’ ongoing efforts to interpret national security laws and regulations using common law interpretation methods within the context of increasing pressures from both the Chinese and Hong Kong governments to ensure national security. While the extent to which the Hong Kong judiciary can maintain this promising trajectory remains uncertain, the success achieved by the Alliance in this case highlights the judiciary’s commitment to balancing the complex interplay between national security imperatives and the protection of human rights.