The applicants alleged that the Hong Kong government did not enact adequate legislation or policy to combat air pollution and therefore failed to ensure the citizens’ right to life and right to health.
They sought two declarations before court, the first of which declared that the government has a legal duty to protect the residents of Hong Kong from air pollution. They based this on the right to life provided by Article 28 of the Basic Law of Hong Kong and Article 2 of the Hong Kong Bill of Rights Ordinance as well as the right to health included in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Secondly, they sought a declaration that government breached this legal duty by having failed to enact adequate legislation. The applicants pointed out current legislation arguing that it does not effectively address the air quality issue: Section 7 of the Air Pollution Control Ordinance (APCO) allegedly fails to adopt up-to-date air quality objectives and the Air Pollution Control (Motor Vehicle Fuel) Regulations prohibit the sale of pre-Euro and Euro 1 diesel fuel, but not its import or use.
The application was dismissed on the grounds that the Air Pollution Control Ordinance and the Air Pollution Control (Motor Vehicle Fuel) Regulations were not found to be a breach of the government’s legal duty.
Even though the Court acknowledged that the right to life provided by Article 28 of the Basic Law and Article 2 of the Bill of Rights as well as the right to health included in Article 12 of the ICESCR could in theory be applied to air pollution, it also pointed out Article 48 of the Basic Law which provides that once policy has been formulated by the government, the legislature can decide on its execution. Adopting up-to-date air quality objectives into section 7 of the APCO and changing the Air Pollution Control (Motor Vehicle Fuel) Regulations with regards to the import and use of certain diesel fuels requires an examination of policy and falls within the legislature’s area of responsibility. Stating that government has a wide discretion to make policy decisions such as those, the Court dismissed the application.