Introduction

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.