In our earlier
case commentary, we have seen how the Malaysian
High Court had issued a Mareva injunction and a proprietary
injunction against "Persons Unknown" for the first time
in Malaysia in a cyber fraud case in Zschimmer & Schwarz GMBH & Co.
KG Chemische Fabriken v Persons Unknown and Mohammad Azuwan bin
Othman (t/a Premier Outlook
Services) [2021] 7 MLJ 178
("Zschimmer & Schwarz").
As a recap, Zschimmer &
Schwarz was a case involving a push payment
fraud and where the Plaintiff was deceived by the "Persons
Unknown" into making payment of approximately €123,014.65
into the 2nd Defendant's bank account in
Malaysia. The owner of the bank account who was identified, was
sued as the 2nd Defendant while the unknown
fraudster(s), "Persons Unknown", was sued as the
1st Defendant.
Since the first decision was issued, the web of potential
defendants has grown wider. In this regard, the
2nd Defendant was initially the recipient of the
Plaintiff's monies. Thereafter, the money trail led to the
proposed 3rd and
4th Defendants.
Pursuant to a further application by the Plaintiff, the High Court
has, for the first time in Malaysian jurisprudence, granted, among
others, a self-identification order against the "Persons
Unknown", the 1st Defendant. A
self-identification order, also known as a Spartacus Order,
requires the "Persons Unknown" to identify
himself/herself and to provide an address for service.
In this case, the self-identification order would entail placing an
advertisement in a local newspaper of a notice against the
1st Defendant (being the Persons Unknown). The
notice would alert the Persons Unknown of the order for them to
self-identify within seven days of the advertisement, failing
which, they risk committal proceedings.
Some of the salient points from the High Court's Grounds of
Judgment, reported in Zschimmer & Schwarz GmbH
& Co KG Chemische Fabriken v Persons Unknown & Anor (No.
2) [2021] 3 CLJ 587 ("Zschimmer
& Schwarz No.2"), are explained
below.
The High Court Decision
First, the High Court was of the view that the purpose of the
self-identification order is to ensure that the Plaintiff's
remedies will be effective if it succeeds in its claim. In this
case, the High Court was satisfied that the self-identification
order was necessary so that if the Plaintiff is successful in its
suit, its proprietary remedies will be effective against these
Persons Unknown. The High Court was cognisant that the
Plaintiff's monies appear to remain within the jurisdiction.
Hence, the self-identification advertisement in Malaysia can be
effective in alerting the Persons Unknown to reveal
themselves.
Second, the High Court also took cognisance of the fact that a
self-identification order is not uncommon in United Kingdom, where
it had been granted in PML v Person(s)
Unknown [2018] EWHC 838 (QB)
("PML") against unknown hackers who had
hacked and stolen a large amount of data, as well as
in NPV v QEL & Another
[2018] EWHC 703 (QB) ("NPV") against an
anonymous blackmailer.
Third, even though the cases granting a self-identification order
cited by the Plaintiff involved blackmail and the threat of
publication of confidential or sensitive information, the High
Court was of the view that the principles are equally applicable in
the present circumstances which involved fraud and persons hiding
behind the fraud.
Conclusion
While it is true that one may question the effectiveness of
self-identification orders or as to how many defendants would
actually choose to comply with such orders given that their
identities are unknown in the first place, this case nevertheless
shows that the Malaysian Court is willing to extend its
jurisdiction as required in order to assist the victims of cyber
fraud. As such, it is a case worth celebrating.
One should also not assume that all defendants would choose to
disregard a self-identification order. In the words of Justice
Nicklin in PML, "it cannot
be assumed that all defendants will choose defiance. Few defendants
can remain confident that they will ultimately manage to evade
identification. If they fail, punishment for contempt of court
would then loom large". In fact, the
2nd defendant
in NPV ultimately complied with
the self-identification order and provided his name and address for
service.
Backstory
As to why a self-identification order is also referred to as a
Spartacus Order, the answer perhaps lies in the 1960 movie
"Spartacus", directed by
Stanley Kubrick and starring Kirk Douglas as Spartacus, a
gladiator-slave who led an army of slaves to rebel against Rome in
the Servile War. In one of the scenes, after the slave army, had
been defeated by the Roman army, an officer of the latter announces
to the captured members of the slave army that they would all be
spared of death by crucifixion if they identify Spartacus, whether
living or dead. As Spartacus stands up to identify himself, his
soldiers rise in succession, each shouting "I am
Spartacus!" until the shouts rise to a thunderous roar. Will
it be a case of life imitating art in Zschimmer
& Schwarz (No. 2) ?
Inspiring though the above scene may be, the truth is somewhat
harsher. Spartacus was killed in the Battle of the Silarus River in
71 BCE and more than 6,000 captured slaves were crucified along the
Appian Way leading back to Rome as a grim reminder of the fate that
awaits any slave who rebels against Rome.
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