Malaysia’s First Action against Unknown Persons on Cyberspace

Every legal author’s dream is to have his or her writing quoted in a Court case. I am stoked that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” was recently quoted by Justice Ong Chee Kwan in the High Court case of Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor. His Lordship made reference to a section of my book regarding action against Persons Unknown. Many thanks to Lee Shih for taking the effort to have my book quoted.

In this case, the High Court granted an ex-parte proprietary injunction and Mareva injunction against “persons unknown” as the 1^st defendant. The plaintiff was a victim of cross-border cyber fraud known as a “push payment fraud” where the victim is tricked over emails to make a payment for a legitimate transaction into a different bank account under the control of the fraudster. The plaintiff, a German company, was in communication with its South Korean counterparty. The fraudster, being Persons Unknown, deceived the plaintiff into paying into the 2nd defendant’s bank account the sum of EUR 123,014.65 (approximately close to RM 600,000.00) by infiltrating the email communications between the plaintiff and the South Korean counterparty. The plaintiff thought it was making a genuine payment to its South Korean counterparty for a commission payment. Instead, the fraudster had siphoned the Plaintiff’s monies away.

Justice Ong Chee Kwan delivered the first known decision on a persons unknown injunction. After going through a series of English cases against Persons Unknown, his Lordship held-

[40] It is not usually the case that a defendant is described as ‘Persons Unknown’. Nevertheless, the Court can grant interlocutory orders against the 1st Defendant — being Persons Unknown. In cases like the present which involve cyber fraud and fake email addresses, the fraudster or fraudsters are unknown. English case law have allowed for similar injunctive orders against ‘Persons Unknown’. There is nothing in our Rules of Court 2012 that would prevent the Writ of Summons and applications from being filed against Persons Unknown.

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[49] As stated above, there is nothing in our Rules of Court 2012 prohibiting the making of an order against Persons Unknown. In fact, Order 89 of the Rules of Court 2012 for summary proceedings for possession of land allows for a defendant reference to Persons Unknown.[See Fauziah Ismail & Ors v Lazim Kanan & Orang-Orang Yang Tidak Diketahui [2013] 7 CLJ 37 (CA); the commentary in Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law, para [8.098] to [8.100]].

The section referred by Justice Ong Chee Kwan can be seen below-

It is also interesting to note that his Lordship had referred to a case where substituted service was done vide email and WhatsApp messenger. This is also a case which we had acted for the Plaintiff against the defendant for trade mark infringement.

The case name is 30 Maple Sdn Bhd v Noor Farah Kamilah binti Che Ibrahim (Kuala Lumpur High Court Suit No: WA-22IP-50-12/2017). However, the significance of this case will soon be eclipsed by the new amendments to the Rules of Court 2012 which allows for electronic service.