While waiting for bail hearing, Jimmy Lai was further charged with one count of "collusion with a foreign country or with external elements to endanger national security", contrary to art.29(4) of the NSL on 11 December 2020.

On 23 December 2020, the CFI granted him bail pursuant to section 9J of the Criminal Procedure Ordinance subject to the respondent providing the undertaking offered by him in the strict terms.

[7][8] The Respondent (Lai) argued that on the principle of legality, a remedial interpretation involving a reading down of NSL 42(2) is required due to intrusion on the presumption of innocence and right to liberty.

The Respondent argued that the NSL cannot override the Hong Kong Basic Law or ICCPR, and the Court can deal with its constitutionality by virtue of being entrusted with the power to uphold BL.

[1] The CFA held that the earlier decision to grant appeal by the CFI was to be set aside, on the ground that the lower court had elided the NSL 42(2) question with discretionary considerations under conditions of refusing bail of s.9G the Criminal Procedure Ordinance.

[1] It was further held that the Prosecution bears no burden of proof in relation to proving that there is no sufficient ground to believe that the accused would not continue to commit offences endangering national security.

[1] The CFA applied Ng Ka Ling v Director of Immigration (No 2) and asserted that there is no jurisdiction in the courts of Hong Kong to review the legislative acts of the National People's Congress (NPC) and its Standing Committee (NPCSC) done in accordance with the Basic Law.

The Court regard the promulgation of the NSL was done in accordance with art.18 of the Basic Law on the basis that national security was outside the limits of the HKSAR's autonomy and within the purview of the Central Authorities.