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.
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.
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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