Spartacus Orders
Ever been hit with a victim of fraud whereby you have no idea who committed the fraud / scam against you? No matter how hard you try to get the name of the person, it just seems like the scammer has no name? Fear no longer, the Malaysian Courts have started to allow self-identification orders or the more aptly named “Spartacus” Order.
What is a Spartacus Order?
Well, when looking at the glamorous name of the Order, one can’t help but to wonder what is it all about?
To put it simply, a Spartacus Order is merely known as a self-identification order. It was given the name “Spartacus” Order due to the similarities between the Order and the famous Spartacus movie in the 60s where the famous scene from the same had people saying “I am Spartacus”. The main aim of the Order is to compel an unknown defendant (“Persons Unknown”) to identify themselves and provide an address of service.
Malaysian Case Law
In the case of Zschimmer & Schwarz GMBH & Co Kg Chemische Fabriken v. Persons Unknown & Anor [2021] MLJU 187, involved a Plaintiff (the “Company”) who was a victim of a push fraud scam. The Persons Unknown, who was the 1st Defendant, deceived the Plaintiff into paying Euros $123,014.65 (or approximately RM600,000.00 at that point in time) into a Malaysian CIMB Bank Account here in Malaysia. The Plaintiff subsequently transferred the monies into the bank account of the 2nd Defendant.
Prior to the decision in this case, the Court had previously granted a Mareva Injunction against the 1st & 2nd Defendant and orders for discovery was also made against the banks involved in the case. Through discovery, it was later revealed that the monies transferred by the Plaintiff was dissipated into 3 ways:
The 2nd Defendant pocketed a total of RM290,400.00;
The 3rd Defendant received a total of RM250,000.00; and
The 4th Defendant received a total of RM50,00000.
Decision by the High Court
The High Court heavily referred to the English case of PML v Person(s) Unknown [2018] EWHC 838 in reaching its decisions by stating that the purpose of the self-identification order is so that if the Plaintiff were to succeed, such an order is necessary to protect the Plaintiff’s rights. The High Court readily acknowledged that the Defendant may disobey and not comply with the self-identification order but this cannot always be assumed as only few defendants can remain confident that they will ultimately manage to evade identification. Ultimately, by hook or by crook, this order would bring the persons unknown into the light.
But, How is it Done?
Quite simply, the High Court stated that by granting a Spartacus Order, it would mean that an advertisement would need to be displayed and placed in newspaper outlets such as the Berita Harian against the 1st Defendant. This advertisement would need to be in a form of a Notice against the 1st Defendant whereby the Notice would alert the Persons Unknown of the Order for them to self-identify within 7 days of the advertisement. Failure to self-identify within 7 days of the notice would amount to a contempt of court, which would bring about criminal sanctions against the Defendant.
How Does this Affect Us in Malaysia?
The emergence of a Spartacus Order is a very good sign that the Malaysian Courts are weary of potential scams and fraud attempts by Defendants and they’re exercising their inherent powers to make sure justice is served and not only seen to be done. The Spartacus Order adds a further tool for a fraud litigator & victim to trace unknown fraudsters. This can be applied in cases involving anonymous hackers, blackmailers or someone threatening extortion alike. This ensures that these fraudsters aren’t allowed to hide behind their screens anymore.
The implementation of Spartacus Orders in Malaysia is a clear indication that the Malaysian Courts are willing to extend its jurisdiction as and when required in order to assist the victims of cyber fraud.
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