KWAN HUNG SHING AS EXECUTOR OF THE ESTATE OF HO SHUK MING, DECEASED v. FONG KWOK SHAN, CHRISTINE AND OTHERS

HCA 265/2012

[2022] HKCFI 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 265 OF 2012

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________________________

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D E C I S I O N

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A.  INTRODUCTION

1.  This is the 1^st defendant’s application for leave to appeal out of time against the decision of this court delivered on 4 March 2021 (the “Decision”), whereby it was ordered that leave be granted to the Director of Lands (the “Director”)  to be released from the implied undertaking so that use can be made of the documents listed in the Schedule (the “Documents”)  attached to the 21^st defendant’s summons filed on 21 October 2019 (“D21’s Summons”)  in such way and in such manner as may be reasonably necessary, including supplying the said documents or copies thereof to relevant persons, organizations or authorities, for the purposes set out in paragraph 1 of D21’s Summons.

2.  The 1^st defendant submits that the Decision is not an interlocutory one and any appeal against the Decision requires no leave from the Court of First Instance or the Court of Appeal.  In any event, it is not in dispute that leave for extension of time is required regardless of whether the Decision was final or interlocutory:

(1)  If the Decision was final, the 1^st defendant should have served her Notice of Appeal within 28 days of the Decision pursuant to Order 59, rule 4(1)(c)  of the Rules of the High Court, Cap 4A (“RHC”), ie on or before 1 April 2021;

(2)  Alternatively, if the Decision was interlocutory, the 1^st defendant should have made her application for leave to appeal within 14 days from the date of the Decision pursuant to Order 59, rule 2B of the RHC, ie on or before 18 March 2021.

Both the above time limits had expired by the time the 1^st defendant filed her summons and supporting affidavit on 13 April 2021.

B.  WHETHER THE DECISION IS FINAL OR INTERLOCUTORY

3.  I am of the view that the Decision is an interlocutory order.

4.  Practice Note 59/21/4 of the Hong Kong Civil Procedure 2022 provides that where it is required to determine whether a judgment or order is or is not interlocutory in a case where such judgment or order does not fall into one of the classes referred to in Order 59, rule 21, the test to be applied is still the “application test”.

5.  Citing Chan PJ’s observation in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003)  6 HKCFAR 222, at [31]: “A broad common-sense approach should be adopted.  If the issue dealt with and determined by the court is ‘a substantive part of the final trial’ ... or ‘a crucial issue’ in the case or a point ‘that goes to the root of the case’, … or ‘a dominant feature of the case’ …, then the order or judgment, even if it does not finally dispose of the whole action, should nevertheless be regarded as a final judgment.”

6.  Practice Note 59/21/4 goes on to state that in Bright Shipping Ltd v Changhong Group (HK)  Ltd [2019] 2 HKLRD 220, the Court of Appeal looked at Shell and B+B Construction, Lam VP (as he then was), giving the reasons for judgment of the Court, held (at [11])  that to be a final decision, the issue in question has to be an issue on the merits as opposed to procedural steps for bringing or preparing a case before it is presented to the court for final determination on the merits.

7.  Applying the above principle, clearly the question of whether the Director should be released from the implied undertaking is not an issue on the merits, rather it is one of the procedural steps for preparing a case before it is presented to the court for final determination on the merits.

8.  I shall therefore treat this as an application by the 1^st defendant for leave to appeal against an interlocutory order out of time.

9.  In this regard, where a delay in applying for leave to appeal is inexcusable although insubstantial, the applicant faces a higher threshold, ie the party must show a real prospect of success on the merits and not simply the test of a reasonable prospect of success: Practice Note 59/2A/10 of the Hong Kong Civil Procedure 2022.

C.  NO “REASONABLE” OR “REAL” PROSPECT OF SUCCESS

10.  I am of the view that the proposed grounds of appeal put forward by the 1^st defendant as her Grounds of Appeal are not sufficiently meritorious justifying leave, regardless of whether the test is “reasonable” or “real” prospect of success.

C1.  Ground 1

11.  Under this ground, the 1^st defendant submits that the court’s conclusion that the 21^st defendant should be discharged from the implied undertaking is inconsistent with the court’s finding that the remedies sought by the plaintiff against the 21^st defendant were “without legal basis, and in any event wholly unnecessary”.  As I understand it, the 1^st defendant’s contention is that if the 21^st defendant is not a proper party to the action in the first place, she should not be entitled to obtain or use the Documents disclosed by the other parties to the proceedings.

12.  I do not consider that the 1^st defendant’s contention is reasonably arguable.

13.  The finding that the declarations sought by the plaintiff against the 21^st defendant were unnecessary was only one of the two alternative routes to come to the conclusion that no relief should be granted against the 21^st defendant. The other alternative route was that the relief claimed were “without legal basis” as the Building Licences and Permission Letters involved in this case were only voidable at the instance of the Director and not void ab initio.  In the premises, the 21^st defendant was clearly a proper party in the action.

C2.  Ground 2

14.  Under this ground, the 1^st defendant contends that this court was wrong in law in holding that it was in the public interest to release the 21^st defendant from the implied undertaking, given that the criminal liability associated with the development agreements and schemes in the present case was yet to be decided judicially.

15.  I do not regard that the 1^st defendant’s contention is reasonably arguable with a reasonable prospect of success.  Whether the activities of the plaintiff and the 1^st to 20^th defendants in this action would give rise to any criminal liability can only be decided after the relevant law enforcement institutions have conducted investigation.  As this court had made the finding that the statutory declarations made or to be made by the dings in this case must all be false (paragraph 23 of the Judgment dated 9 July 2019), it must be correct for this court to find that disclosure of the Documents was in the public interest of ensuring a proper criminal investigation into the conduct in question.

C3.  Ground 3

16.  Under this ground, the 1^st defendant contends that this court was wrong in law in holding that the parties’ use of the Documents was connected with the original cause of action, having recognized that the original cause of action was one of resulting trust and trespass only.

17.  This ground is again not reasonably arguable.  In paragraph 14 of the Judgment, I explained that it was part of the plaintiff’s case that the defendants “could not rebut the presumption of resulting trust since in doing so they would have to rely on the illegal development scheme concerning the New Territories Small House Policy…”. (Emphasis added)

18.  Thus understood, the illegal development scheme involving false statutory declarations had everything to do with the analysis and eventual finding of the resulting trust in favour of the plaintiff.

C4.  Ground 4

19.  Under this ground, the 1^st defendant contends that regarding Item 6 and Items 18 to 25 of the Documents, the court was wrong in law in shifting the burden of proof to the 1^st defendant in proving that disclosure of letters between the parties and their respective legal representatives would engage legal professional privilege (“LPP”).

20.  This ground is not reasonably arguable.  On a careful reading of the Decision, this court did not shift the burden of proof to the 1^st defendant to establish LPP or generally to resist the 21^st defendant’s application, rather the court was only stating the fact that no LPP was asserted over the Documents (paragraph 13 of the Decision), and as such the Documents were not protected by LPP.

21.  This court clearly had in mind that the burden was on the person who had obtained documents to demonstrate cogent and persuasive reasons why the implied undertaking should be released (paragraph 6 of the Decision), and the 21^st defendant had demonstrated such cogent and persuasive reasons as set out at paragraphs 9 to 13 of the Decision.

D.  CONCLUSION

22.  For the reasons stated above, the 1^st defendant’s summons dated 13 April 2021 is dismissed.

23.  Further, I order that the costs of the application be paid by the 1^st defendant to the 21^st defendant, such costs are to be taxed if not agreed.

24.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr K M Chong and Mr Felix HF Tsang, instructed by Messrs K C Ho & Fong, for the 1^st defendant

Mr Ryan Lee (Government Counsel) of Department of Justice, for the 21^st defendant

HCA 265/2012

[2021] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 265 OF 2012

________________________

________________________

________________________

D E C I S I O N

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1.  A judgment in this case was handed down by this court on 9 July 2019 (the “Judgment”) which concerned agreements made between the owner of a piece of land in Sai Kung and a developer to develop a number of small houses on the land, purporting to take the benefit of the Government’s New Territories Small House Policy (the “Policy”). Under the Policy, an adult indigenous villager (colloquially called a ding) of a recognised village in the New Territories may apply to the Director of Lands (the “Director”) for permission to erect a small house in the New Territories, which administratively would involve submitting to the Director an application form with a statutory declaration attached thereto.

2.  It was a finding of the court as stated in the Judgment that the statutory declarations made or to be made by the dings concerned “must all be false”.  It was also found that, in order to implement the development scheme concerned, the dings had to make false declarations to the Director.  The development agreements and schemes concerned were therefore held to be illegal and liable to be set aside.

3.  In accepting the submissions of the Director, it was also held in the Judgment that the building licenses and permissions letters obtained on the basis of false statutory declarations were merely voidable at the instance of the Director, not void ab initio. The said licenses and permission letters may contain terms that the Director may wish to enforce against the respective grantee and that there is a legitimate reason as to why the Director would like to retain his discretion as to what to do with the building licenses and permission letters (ie, whether they should be avoided or allowed to subsist).

4.  In view of the Judgment, the Secretary for Justice (“SJ”) the 21^st defendant in this case, on behalf of the Director applies for leave to be released from the implied undertaking to make use of the documents listed in the Schedule of the Summons in such way and in such manner as may be reasonable necessary, including supplying the documents or copies thereof to relevant persons, organization or authorities, for the following purposes, namely:

(1)  Investigating into the conduct of the plaintiff and the 1^st to 20^th defendants, as well as that of their officers, employees, agent and advisers, in relation to the applications to the Director for grants, licenses, certificates and permissions that were the subject matter of the action herein;

(2)  Taking reasonable follow up actions consequential to the said investigation, including revocation of the said grants, licenses, certificates and permissions, and/or seeking appropriate remedies and taking appropriate enforcement actions pursuing thereto; and

(3)  Referring the said applications to the relevant law enforcement institutions for investigation and possible legal action(s), and being used in the said investigation and action(s).

5.  It is not in dispute that all parties to this litigation, including the Director in this case, have given an implied undertaking to the court not to use documents disclosed by one party to the other for any collateral or ulterior purpose other than for the conduct of the litigation.

6.  The Court of Final Appeal in Secretary for Justice v Florence Tsang Chiu Wing [2014] 6 HKC 285, per Ribeiro PJ at paragraph 23, has held that where release from such an undertaking is sought it is for the person who has obtained documents to demonstrate cogent and persuasive reasons why it should be released.  Each case turns on its own facts and no general principle can be formulated beyond stating that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.

7.  The authorities cited by the 1^st defendant do not take the matter further.  In EMI Records Limited v Spillane & Ors [1986] 2 All ER 1016, Sir Nicholas Brown-Wilkinson, VC, is quoted by the 1^st defendant to have said:

“So long as documents are held solely as the result of discovery (particularly discovery under compulsion under an Anton Piller order) in my judgment it would be quite wrong to authorise their use in criminal proceedings brought under fiscal laws and having no connection with the original cause of action.” (Emphasis supplied)

The present case is clearly distinguishable. The making of the false statutory declarations was clearly closely connected with the development of the small houses in question.

8.  I accept that in the present case, there are cogent and persuasive reasons to release the Director from the undertaking.  In particular, it is in the public interest to release the Director from such undertaking.

9.  As set out above, building licences and permissions letters obtained on the basis of false statutory declarations were merely voidable at the instance of the Director, not void ab initio. The documents produced over the course of discovery are necessary for the Director to consider which terms, and how to (if at all) enforce a given term on the licenses and permissions against the respective grantee.  They are also necessary for him in his exercise of discretion as to what to do with the building licenses and permission letter.

10.  Further, to maintain the integrity of the Policy and the application process for development of Small Houses, the Director would also need to use the documents for investigation as to the conduct of the plaintiff and the 1^st to 20^th defendants (which may include looking into the conduct of their officers, employees, agents and advisers) in relation to the application to the Director for grants, licenses, certificates and permissions involved in this case, so that any loopholes on the reliance on statutory declarations and other administrative procedures under the Policy can be identified and be avoided in the future.

11.  Lastly, given the Judgment has held that false statutory declarations were made by persons involved in the development of the Land, it is in the public interest for the Director to refer the documents to the relevant law enforcement institutions for further investigation.

12.  Given the plaintiff’s neutral stance in the application, I accept that there will be no injustice to the plaintiff if the Director is to be released from the undertaking concerning documents which were disclosed in the plaintiff’s various lists of documents.

13.  As to the documents disclosed by the defendants, they are the agreements between the various defendants and Green House, Wills and open letters exchanged between the plaintiff and the defendants.  No legal professional privilege has been asserted over the documents.  Other than saying that she genuinely thought the documents disclosed would be used only for the litigation, the 1^st defendant did not provide any other reason in opposition to the Director being released from the undertaking.  Given the public interest in referring to the documents as identified in paragraphs 8 to 11 above, in my view, they outweigh any injustice to the defendants in the circumstances.

14.  For the reasons set out above, I grant an order in terms of paragraph 1 of the Summons.

HCA 265 /2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO HCA 265 OF 2012

_________________________

_________________________

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D E C I S I O N

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The applications

1.  By summons dated 15 January 2014, the 1^st and 15^th defendants (“the defendants”) seek an order under O.24 r.7 RHC against the Secretary for Justice (on behalf of the Director of Lands), the 21^st defendant of this action.

2.  The defendants have also taken out another summons dated 18 September 2014 for leave to serve a 4^th affirmation of the 1^st defendant, the purpose of which is to exhibit a judgment from G. Lam J. in HCA 666/2007.  The 21^st defendant considers that this is unnecessary and improper.

3.  By another summons dated 24 September 2014, the 1^st defendant asks for leave to serve the 5^th affirmation in support of the defendants’ application. This 5^th affirmation intends to deal with the “technical objection” raised by the 21^st defendant. In this affirmation, the 1^st defendant affirmed that it is her belief that the Government has, or at some time had, in its possession, custody or power the class of documents specified or described in the schedule to the summons dated 15 January 2014 and that they relate to the issue of illegality raised by the plaintiff in paragraph 44 of the Re-Re-Re-Amended Statement of Claim.

4.  The 21^st defendant opposes the defendants’ application for specific discovery under O.24 r.7.  But it does not oppose the 4^th and 5^th affirmations of the 1^st defendant.  They are admitted into evidence and I shall simply deal with the costs of them at the end of this Decision.

5.  The parties are legally represented.[1]

6.  The defendants’ specific discovery against the 21^st defendant is, as set out in the Schedule to the summons, as follows:

“All Government papers on the Small House Policy starting with the 1972 ExCo Memorandum XCR (72) 219 dated 14 November 1972 “Policy with regard to Small House in Rural Areas of the New Territories” including but not limited to different versions of statutory declarations which an applicant (to erect a Small House) was required to make from 1972 to 1996, and all related document.”[2]

7.  This morning, the defendants propose and the 21^st defendant does not oppose that the above schedule should be replaced by the following:

“all paper and correspondence which relate to the Government’s changing the wordings of the Declaration required from an Applicant (to erect a Small House)”

The grounds of objection

8.  The 21^st defendant has raised three objections to the application, viz. 1) the defendants have not complied with O.24, r.7(3); 2) the defendants have failed to identify the documents with precision and 3) the defendants have not shown that the documents are relevant or necessary for the fair disposal of the cause or matter or for saving costs.[3]

The factual background

9.  Briefly stated, the plaintiff was the registered owner of certain pieces of land in the New Territories.  She had entered into agreements with the developer for the development of building small houses on the pieces of land. Through various agreements, her pieces of land were held by the “tings”, who are indigenous males, entitled to erect small houses on the pieces of land under the Small House Policy of the Government. Those tings have no interest in the pieces of land. They were only paid a fee to allow the relevant applications under the policy to be made in their names. The plaintiff is dissatisfied with the progress of the development and she claimed against the developer and all those tings, seeking an order to set aside the various agreements for the recovery of the pieces of the land.  The plaintiff claimed that those agreements were illegal contracts or against public policy. They are void and liable to be set aside.  The 21^st defendant was joined so as to be subject to the court order for setting aside the building licenses and government permissions and other registrations.[4]

10.  It is not disputed that the 21^st defendant had disclosed a) all documents executed by the other defendants in their applications under the Policy, and b) all standard declaration forms since 1993 (the interactions between the parties commenced in 1994)[5] and the pamphlets issued by the Lands Department entitled “The New Territories Small House Policy, How to Apply for a Small House Grant” dated January 1994 and April 1996 respectively, in which there are minor changes between these two versions, showing the change of the Small House Policy.[6]

The law

11.  It will be convenient to set out O.24 r.7 here:

7. Order for discovery of particular documents (O. 24, r. 7)

(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it. (L.N. 157 of 2003 and L.N. 199 of 2003)

(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter. (emphasis added)

8.  Discovery to be ordered only if necessary (O. 24, r. 8)

(1) On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. (L.N. 152 of 2008)

(2) No order for the disclosure of documents shall be made under section 41 or 42 of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. (L.N. 152 of 2008)

12.  The relevant legal principles for this application are succinctly set out by the Court of Appeal in Deak and Company (Far East) Ltd. v N.M. Rothschild and Sons Limited & Others [1981] HKC 78 per Barker JA, 4 November 1981. At page 3 of the judgment, the Court of Appeal said:

“Thus in order to obtain an order for discovery under Order 24 rule 7 the party seeking it has to make out a prima facie case:

(a) that there is in existence a specified document or class of documents;

(b) that the party against whom the order is sought has or had the document in his possession, custody or power;

(c) that the document or class of document relates to a matter in question in the action; and

(d) that discovery thereof is necessary either for disposing fairly of the cause or matter or for saving costs.”    

At page 5 of the judgment, the Court of Appeal said:

‘Moreover, it has to be remembered that, even if existence, possession etc. and relevancy are established, discovery will still only be granted if it is necessary for fairly disposing of the cause or matter: of Lord Wilbeforce in Science Research Council v. Nasse (3) at page 1066 where he said:

"The ultimate test in discrimination (as in other proceedings) is whether discovery is necessary for disposing fairly of the proceedings."

And in deciding that question one of the matters which a Court has to bear in mind is whether it would be oppressive to order discovery - that is oppressive on the party required to give it. What is oppressive must depend upon the particular circumstances of each case.’

13.  The above authority has not changed after the CJR.  See Tullett Prebon (Hong Kong) Ltd. v Chan Yeung Fong Nick & Others HCA2197/2009, To J. (unreported) 9 June 2011 at §§11-12 and the case cited by Mr. Lam, that is, Lee Sai Nam v Li Shu Chung, unreported, HCA1711/2009, DHCJ Marlene Ng, 10 January 2014.

The defendants’ reply

14.  In reply to the 21^st defendant’s objection that the defendants have not complied with O.24 r.7(3) and that the scope is too wide, Mr. Chain submits that the defendants have no knowledge of what the documents the Government has.[7]  He complains that the 21^st defendant has not disclosed the 1972 ExCo paper (this the 21^st defendant has agreed to supply to the defendants).  If the defendants have no knowledge of what the documents the Government has, it is difficult to understand the basis on which the 1^st defendant can say in her 5^th affirmation that she believed the Government had the documents set out in the schedule.  The only impression one gets under the circumstances is that it is the defendants’ fishing exercise for the documents, which should not be allowed.  See §§8-9 Mariner International Hotels Ltd. v Atlas Ltd. & Another (unreported, HCA10714/1998, 10752/1998 & 10821/1998, Burrell J. 18 January 2002).

15.  Mr. Chain is aware of his difficulty and he submits that this is an unusual case where the defendants are in no position to know the papers, being the minutes, memoranda, the letters or other forms of correspondence within the Lands Department and therefore the application will be defeated if the normal rule of the law is applied. This begs the question whether the rule of law should bend in such circumstances. Mr. Chain has not been able to refer me to any authorities to say that fishing exercise should be allowed or a wider margin should be given to the defendants for identification of the documents as a class. The law has to be fair for both parties. If the defendants are unable to specify the class of the documents, it is unfair to invite the Court to make an order against the government official to make an affidavit the way it is proposed. There is a real risk that the government official will commit an offence for making untrue statutory declaration.

16.  As to the relevance of the documents, in the 5^th affirmation of the 1^st defendant, the 1^st defendant refers to paragraph 44 of the Re-Re-Re-Amended Statement of Claim, which alleged that the defendants under the various agreements with the tings, had committed the tort of misrepresentation by having the tings to make untrue statutory declarations, representing to the Government that they were the beneficial owners of the pieces of land on which small houses would be built, against the Small House Policy as pleaded in paragraph 41, rendering all the agreements signed by the plaintiff and the defendants and the licenses or permits issued by the Government void.

17.  In paragraph 32 of the defendants’ Re-Amended Defence and Counterclaim, the defendants denied any act of misrepresentation to deceive the Government, rendering the Development Agreement, the 2000 Development Agreement, the 2000 House Selection Agreement and the 2004 Agreement void. The defendants have also pleaded that the Government had not issued any fixed Small House Policy with the restrictions as alleged as understood by the indigenous villagers.  However, the main issue of the dispute is the untrue statutory declarations that the plaintiff alleged the defendants and the tings had made to deceive the Government, rendering the agreements signed and permits issued by the Government void. The 21^st defendant is right to say that the scope of the discovery is too wide, which may involve all the papers and materials exchanged internally for the Small House Policy as kept by the Government, a far disproportionate exercise for the resolution of the disputes between the parties. In fact, there is no reference in the pleadings that the change of the Small House Policy, still less the reasons for such change, will be in issue at the trial.  Thus analyzed, the proposed discovery will not save costs or will be necessary for a fair trial.

18.  I also agree with Mr. Lam that the scope is too wide, especially when the request refers to “all paper and correspondence which relate to the Government’s changing the wordings of the Declaration …”  The request appears to be vague.  The Court of Appeal in  Deak and Company (Far East) Ltd decided that a class of documents must be clearly identified specific class of documents, classified by not merely bearing on an issue, but also by its nature and it must not be oppressive.  Lee Sai Nam case says that the class must be a class as a whole, not part of a class only. There is also another caution against forcing the deponent to make false affidavit if the document or class of documents are vague.  (See Paul’s Model Art GMBH & Co. KG v UT Ltd. & Others [2006] 1 HKC238)  

19.  The defendants’ application is dismissed.

20.  The 21^st defendant should be entitled to the costs of the application and the costs for the 4^th and 5^th affirmations of the 1^st defendant to be assessed under O.62 r.9A RHC at $100,000 to be paid by the defendants within 14 days from the date hereof. The costs of the plaintiff be the costs in the cause, to be taxed, if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

21.  The Court shall now make an order  in terms as follows:

a.   Paragraph 1 of the defendants’ summons dated 15 January 2014 be dismissed;

b.   Costs as per paragraph 20 supra.

Ms. Tang Sau Yu, of Robin Bridge & John Liu, for the plaintiff

Mr. Benjamin Chain, instructed by Y.S. Lau & Partners, for the 1^st & 15^th defendants

Mr. Simon Lam, instructed by Department of Justice, for the 21^st defendant