On 22 June 2021, the Court of Appeal handed down a judgment dismissing the appeal by the applicant who was refused leave in the Court of First Instance to apply for judicial review against the decision of the Secretary for Justice (“SJ”) to issue a certificate under Article 46(1) of the National Security Law (“NSL”). The Court of Appeal held: 1. The applicant accepted the constitutionality of the NSL 46(1) and the certificate issued under it. He also accepted that his asserted right to a jury trial in the Court of First Instance is not absolute and may be abrogated by NSL 46(1). Moreover, he accepted that he can have a fair trial before the panel of three judges without a jury. He did not allege that the SJ was motivated by bad faith, dishonesty or other ulterior motives in issuing the NSL 46(1) certificate. 2. Applying a purposive construction, NSL 46(1) has to be examined in the light of the general context and purpose of the NSL as a whole. As a national law applied to the HKSAR, the NSL has a special constitutional status focusing on preventing and suppressing acts endangering national security. At the same time, NSL 46(1) has to be read together with NSL 4 and NSL 5, as well as provisions in the Basic Law and the Hong Kong Bill of Rights (BL 63, BL 86, BL 87, BOR 10 and BOR 11), ensuring that the primary purpose of the NSL is served; and an accused’s constitutional right to a fair trial is not compromised. The prosecution also has a legitimate interest in maintaining the fairness of the trial. 3. Although jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed to be the only means of achieving fairness in the criminal process. Neither BL 87 nor BOR 10 specifies trial by jury as an indispensable element of a fair trial in the determination of a criminal charge. When personal safety of jurors and their family members is under threat and due administration of justice might be impaired, there is a real risk that the goal of a fair trial by jury will be put in peril. In such circumstances, the only assured means for achieving a fair trial is a non-jury trial by a panel of three judges. Such a mode of trial servesthe prosecution’s legitimate interest in maintaining a fair trial and safeguards the accused’s constitutional right to a fair trial. 4. NSL 42(1) directs that cases concerning national security offences are to be handled in a fair and timely manner, so as to effectively prevent, suppress and impose punishment for such offences. This direction for timely disposal strongly militates against the applicant’s contention that the issuing of a NSL 46(1) certificate is amenable to challenge by conventional judicial review. It is because such a challenge will breed elaborate and protracted satellite proceedings, delaying if not derailing the criminal process, contrary to NSL 42(1). 5. A decision by the SJ to issue a NSL 46(1) certificate is a prosecutorial decision protected from interference under BL 63. Under common law, a prosecutorial decision can only be reviewed on limited grounds under the rubric of dishonesty, bad faith or other exceptional circumstances. It is not open to challenge on conventional judicial review grounds based on the principle of legality and procedural safeguards as contended. 6. The applicant did not allege dishonesty and bad faith in the present case. He only relied on his asserted constitutional right to a jury trial in the Court of First Instance. However, that alone does not amount to exceptional circumstances for challenging the SJ’s prosecutorial decision of issuing a NSL 46(1) certificate.