Full text of the judgment Bybit payroll officer embezzles public funds, Singapore court determines the property nature of cryptocurrency

Bybit payroll officer embezzles public funds, Singapore court determines cryptocurrency as property.

Compilation: Wu Shuo Blockchain

Cryptocurrency exchange Bybit sues Ms. Ho, who is responsible for paying salaries within the company, for abuse of power, transferring a large amount of USDT to an address secretly owned and controlled by her. The Singapore High Court upheld the judgment on July 25, stating that cryptocurrencies are widely recognized as property, and holders of cryptocurrencies essentially have intangible property rights recognized under common law. As assets in the litigation, they can be enforced in court. The court ruled that Ms. Ho must immediately pay Bybit all the transferred funds and interest.

Below is the full translation of the judgment.

Introduction

1. This case involves a type of cryptocurrency called Tether, which is an example of a stablecoin. This means that the issuer claims to support each issued stablecoin with fiat currency or other reserves of equivalent value. The issuer typically provides terms of service, under which verified holders of stablecoins have the right to redeem them for fiat currency from the issuer. This link to fiat currency (in this case, the US dollar) is reflected in the common name for Tether, namely USDT, which stands for US dollar Tether. In this judgment, I will use this abbreviation.

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2. In this application, ByBit Fintech Limited (“ByBit”) seeks a judgment against the first defendant, named Ho Kai Xin (“Ms. Ho”). The allegation against her is that she violated her employment contract and abused her position by transferring some USDT to an “address” secretly owned and controlled by her, as well as transferring some fiat currency to her own bank account. The primary relief sought is a declaration that Ms. Ho holds the USDT and fiat currency in trust for ByBit. Therefore, ByBit seeks the return of the same or traceable proceeds, or payment of an equivalent amount.

3. The courts in Singapore and elsewhere have already recognized, when granting interim injunctions, that there is at least a serious question to be tried or a good arguable case that cryptocurrency can be property held on trust. In doing so, it is not yet necessary to determine whether these cryptocurrencies are choses in action or a new form of intangible property. In order to grant judgment and ultimately declare a trust, this court must further determine whether the cryptocurrencies in question, namely USDT, are indeed property that can be held on trust, and if so, what type of property they are.

4. In this case, I find that USDT, even without the assistance of a legal system, can be transferred from one holder to another through cryptography, but it is still a chose in action. In this judgment, I mostly use the phrase “chose in action,” which has the same meaning as choses in action. Although USDT also carries the right to redeem it for an equivalent amount of US dollars from Tether Limited, a company in the British Virgin Islands (BVI), which makes it more like a traditionally recognized chose in action, I do not consider this characteristic to be a necessary condition for classifying a cryptocurrency as a chose in action. Like any other chose in action, USDT can be held on trust.

5. I further believe that ByBit has proven its case seeking judgment, and therefore I grant the sought-after declaration based on the constructive trust of the system.

6. I now explain the reasons for my conclusions.

Background

7. Seychelles company ByBit owns a cryptocurrency exchange named after itself. ByBit pays its employees’ salaries in traditional currency, cryptocurrency, or a combination of both. Singapore company WeChain Fintech Pte Ltd (“WeChain”) provides payroll services to ByBit and related entities. Ms. Ho is an employee of WeChain and is responsible for handling the salary calculations of ByBit employees.

8. As part of her duties, Ms. Ho maintains a Microsoft Excel spreadsheet that records the cash and cryptocurrency payments (referred to as “fiat Excel file” and “cryptocurrency Excel file,” respectively) to be made to ByBit employees each month. The cryptocurrency Excel file lists the “addresses” that ByBit employees use to receive cryptocurrency payments. An “address” can be understood as an encrypted digital “folder” that can “receive” and “store” cryptocurrency. Each address is a unique alphanumeric string. The corresponding “private key” is required to access and authorize transfers between addresses. These private keys, in turn, are stored in a “wallet,” which can be understood as the means of interacting with cryptocurrency. Wallets hosted online by service providers (typically cryptocurrency exchanges) are known as “custodial wallets.” Custodial wallets usually exist in the form of user interface applications. Offline wallets are referred to as “self-custodial wallets” and may be a simple piece of paper with the private key written on it or complex encryption software that restricts access to the private key. In short, accessing a wallet means obtaining the stored private key, thereby controlling the addresses and the stored cryptocurrency within them. ByBit employees can and do frequently change their designated addresses by communicating new addresses to Ms. Ho, who then updates the cryptocurrency Excel file. Only Ms. Ho can update the cryptocurrency Excel file, and only she has access to these files, except for the monthly requirement to submit the cryptocurrency Excel file to her immediate supervisor, Casandra Teo, for approval.

9. On September 7, 2022, ByBit discovered eight unusual cryptocurrency payments (“anomalous transactions”) that occurred between May 31, 2022, and August 31, 2022, involving large amounts of USDT being transferred to four addresses (referred to simply as addresses 1, 2, 3, and 4). A total of 4,209,720 USDT (“cryptocurrency assets”) was transferred. USDT is so named because its value is pegged to the US dollar, and each USDT grants its holder (i.e., the “verified customer” of issuer Tether Limited) contractual rights to convert their USDT into US dollars. These anomalous transactions were logged in an Excel spreadsheet (“reconciliation Excel file”), and Ms. Ho was assigned to explain these discrepancies. Initially, Ms. Ho attributed the anomalous transactions to inadvertent errors or technical mistakes and proposed calculations to recover the amount owed from ByBit employees.

10. From September 9th to 22nd, 2022, Ms. Ho has still not provided any explanation for the abnormal transactions. When asked why the amounts paid to different employees were sent to the same address, address 1, Ms. Ho suggested that it might have been a mistake on her part. Ms. Ho continued to provide status updates in the reconciliation Excel file, describing the abnormal transactions as “overpayments” to ByBit employees.

11. On September 27th, 2022, ByBit contacted a presumed recipient of the abnormal transactions. 1.3 million USDT had been paid to an address under his name, address 1. However, according to ByBit, the employee denied ever specifying an address as he had only been paid in traditional currency and had no knowledge of who owned address 1. ByBit’s internal investigation found that Ms. Ho had sent an email to herself from her work email on May 19th, 2022, containing address 1. Ms. Ho’s work email also received an email on August 29th, 2022, containing all four addresses, this time from her personal email. These emails were recovered by ByBit as they had been deleted.

12. ByBit also discovered that in May 2022, Ms. Ho caused $117,238.46 (“fiat assets”) to be paid into her personal bank account. It is undisputed that Ms. Ho was not entitled to the fiat assets, and she explicitly accepted that she held the fiat assets in trust for ByBit. However, to date, Ms. Ho has taken no steps to return the fiat assets.

13. On September 29th and October 4th, 2022, ByBit conducted meetings with Ms. Ho. In the first meeting, Ms. Ho claimed that she could not remember the details of the abnormal transactions. In the second meeting, Ms. Ho was confronted with the results of ByBit’s investigation. Ms. Ho told ByBit that she did not own the wallets associated with the four addresses, and that they belonged to her cousin, whom she could not access. Ms. Ho said it was her cousin who proposed that she help him transfer the cryptocurrency, and she had surveillance footage recording him conducting the abnormal transactions at her home. Ms. Ho admitted that she had been involved in this scheme prior to the meeting three months ago and told ByBit that she wanted to report it to the police as she did not own any cryptocurrency assets. After the meeting, Ms. Ho refused to sign the single-page statement that recorded the events. However, it is undisputed that Ms. Ho made these statements to ByBit. Subsequently, Ms. Ho lost contact with both ByBit and WeChain and did not attend any further meetings.

14. ByBit commenced this lawsuit on October 12th, 2022. ByBit successfully obtained several interim remedies, including a worldwide freezing order against Ms. Ho and injunctions against the cryptocurrency (i.e., crypto assets) in the four addresses and the fiat assets in Ms. Ho’s bank account. On October 18th, 2022, Ms. Ho personally accepted the originating claim and orders. On October 31st, 2022, Ms. Ho disclosed in an affidavit that the wallets associated with the four addresses belonged to her cousin, Jason Teo (“Jason”). Ms. Ho claimed that she had no access to any of the wallets and had deleted text conversations with Jason before accepting service of the orders, and she did not turn off the surveillance footage as recordings over seven days old are automatically deleted. Ms. Ho submitted her defense on November 11th, 2022, and served a third-party notice on Jason.

15. Ms. Ho fully accepts that the encrypted assets belong to ByBit and she has no right to own them. Ms. Ho’s main defense is that Jason stole the encrypted assets from ByBit without her knowledge. She did not benefit from it because the wallets associated with the four addresses are solely owned and controlled by Jason. Her case is that starting from May 2022, she had asked Jason for assistance in checking the cryptocurrency Excel file “many times” when he visited her home. Afterwards, Jason accessed her work laptop without her knowledge or consent, which Ms. Ho discovered by viewing the surveillance video at home after being reminded by ByBit to pay attention to abnormal transactions. She then questioned Jason, who admitted to intentionally replacing several addresses designated by ByBit with the four addresses. Despite her repeated requests, Jason refused to return the encrypted assets. Ms. Ho’s position is that she was still unaware of the reason for the abnormal transactions on September 9, 2022, which is more than a week after the last abnormal transaction on August 31, 2022. She did not explain how she was able to view the alleged video evidence.

16. Dissatisfied with Ms. Ho’s disclosure, ByBit sought and obtained an order on December 7, 2022, for broader disclosure of Ms. Ho and some third parties, including her father and husband. This is because ByBit discovered that Ms. Ho had made some large-scale purchases since July 2022, including a top-floor apartment with permanent ownership purchased together with her husband, a brand-new car, and several Louis Vuitton products. It is worth noting that despite initially denying ownership of any real property, Ms. Ho later explained that she purchased the top-floor apartment with permanent ownership using money earned from cryptocurrency transactions with MetaMask and crypto.com. This contradicts her previous claim that her MetaMask account had not been used at all. Ms. Ho did not provide her MetaMask and crypto.com addresses, nor did she provide account transaction statements. According to Ms. Ho, she lost access to her crypto.com account because it was registered to her personal email, which has been disabled for unknown reasons. Similarly, she cannot access her MetaMask account because she purchased a new phone in October 2022 and cannot retrieve the necessary password from her previous device. I also note that contrary to the disclosure order, Ms. Ho initially failed to disclose all of her assets, such as her bank accounts, which required further inquiry by ByBit.

17. Meanwhile, Ms. Ho applied for and obtained a license for alternative service for Jason. Strangely, in her supporting affidavit, Ms. Ho stated that it was Jason who deleted their text message history after she told him that she had been served with the lawsuit. Jason did not appear in this lawsuit.

18. On March 30, 2023, ByBit filed this application for summary judgement. Ms. Ho did not submit any affidavit in opposition to the application pursuant to Rule 17(3) of the 2021 Court Rules. On April 18, 2023, prior to the hearing, Ms. Ho took over her own defense. Ms. Ho did not attend any of my previous hearings and did not submit any pleadings.

19. For completeness, ByBit also applied to amend their claim and submitted further pleadings, which I directed to be filed by May 19, 2023. ByBit initially asserted that Ms. Ho held the crypto and fiat assets in remedial constructive trust. Consequently, ByBit sought the amendment to introduce an alternative argument based on institutional constructive trust. I allowed Ms. Ho to file submissions on the amendment and extended her time to file submissions on summary judgement by May 26, 2023. As before, Ms. Ho did not file any submissions and did not oppose the amendment application.

20. ByBit submits that the amendment is merely clarificatory and does not introduce any new facts. The Statement of Claim already clearly sets out that it is Ms. Ho who caused the abnormal trades, and her defense will not be affected by the amendment. On the contrary, the amendment allows the real issues in dispute to be fully and finally determined, and Ms. Ho will not be prejudiced by any damages that cannot be compensated for by costs.

21. I agree that the proposed amendment is clarificatory, adding an alternative legal conclusion of institutional constructive trust based on the facts already pleaded, and enables the real issues in dispute to be fully and finally determined. Therefore, I allowed the amendment on June 30, 2023, and on the basis of ByBit’s Statement of Claim (Second Amendment), commenced the application for summary judgement, which was filed on July 5, 2023.

Parties’ Cases

Ms. Ho’s Case

22. As stated earlier, Ms. Ho’s primary contention is that responsibility should lie solely with Jason (see paragraph [15] above). From her affidavit, it appears that Ms. Ho claims she has no way of identifying Jason or knowing his personal information or address. Additionally, Ms. Ho believes that Jason accessed her work and personal emails, sent and then deleted emails stating four addresses (see paragraph [11] above). Ms. Ho denies deleting these emails without authorization. Furthermore, Ms. Ho claims that she implied lying about ByBit during an interview on October 4, 2022 (see above [13]). According to Ms. Ho, ByBit strongly warned her that her actions were criminal and consistently insisted that she was responsible for the abnormal trades. Ms. Ho responded in this way to protect Jason, with whom she has a close relationship, and because she needed to attend to her sick two-year-old son. Due to her son’s illness, she declined to sign the single-page acknowledgment after the interview as she did not have time to review its contents and also declined to participate in subsequent interview meetings.

23. Regarding the statutory assets, Ms. Ho stated that when preparing the statutory Excel file, she accidentally entered her data into another employee’s data, resulting in incorrect payment.

ByBit Case

24. ByBit argues that, under Rule 17(1)(a) of the 2021 Court Rules, it is entitled to a summary judgment as it has established a prima facie case and Ms. Ho has not defended the claim. ByBit’s focus is on the cryptographic assets, as Ms. Ho acknowledges holding ByBit’s statutory assets in trust.

25. First, ByBit argues that “Jason” is entirely fictional. Ms. Ho has no evidence to support the existence of Jason, and her description of events is inherently implausible. Concurrent with the suspicious transactions, Ms. Ho also engaged in a questionable spending spree. She spent approximately $362,000 on a new car, $30,000 on Louis Vuitton products, and suddenly cancelled her existing pre-sale HDB apartment to purchase a penthouse worth around $3.7 million. Additionally, ByBit obtained incriminating information from the service provider of the wallet associated with address 1. This demonstrates that Ms. Ho owns the wallet and includes her identification card and selfies, which she provided during the account registration process. Public transaction records also match the abnormal transactions flowing into address 1, with certain transfer dates indicating that USDT transferred into addresses 2 and 3 was quickly moved to address 1. This proves that Ms. Ho owns and controls the wallet associated with address 1 and may own and control wallets associated with other addresses.

26. Secondly, ByBit argues that cryptographic assets consist of options and are capable of being the subject matter of a trust. This is because USDT grants certified customers of Tether Limited the right to redeem USDT for an equivalent amount of fiat currency. ByBit contends that address 3 is associated with a self-custodial wallet, meaning that Ms. Ho can directly access the relevant private keys and thereby exercise control over address 3 and the USDT therein, which can be held in trust as an option. As for addresses 1, 2, and 4, they are associated with custodial wallets. In the case of custodial wallets, the authority to access the private keys is held by the service provider, not the user of the custodial wallet. Conversely, the user of the custodial wallet has contractual rights to instruct the service provider to transfer cryptocurrencies between addresses. ByBit likens this to a bank account, where the cryptocurrency balance declared in the custodial wallet (equivalent to the account balance) is an option against the service provider (equivalent to the bank). Therefore, the relevant property is also an option, namely the right to instruct the service provider regarding the USDT credit balance.

27. Thirdly, ByBit argues that Ms. Ho holds cryptographic assets and statutory assets in a constructive trust or, alternatively, has been unjustly enriched in the sum of cryptographic assets and statutory assets. ByBit contends that Ms. Ho obtained the cryptographic assets through fraudulent means by manipulating the cryptographic currency Excel file, leading to the erroneous payment of cryptographic assets to the four addresses controlled by Ms. Ho, thereby giving rise to a constructive trust. Alternatively, ByBit argues that a remedial constructive trust should be recognized in this case, as fraudulent or wrongful conduct has already occurred and Ms. Ho’s conscience has been affected. Therefore, ByBit submits that I should grant a tracing order as Ms. Ho traded cryptographic assets and statutory assets in breach of the freezing order. For the claim of unjust enrichment in the alternative, ByBit relies on the factor of factual error and unjustness, namely ByBit being misled into believing that the cryptocurrency payment should be made to its employee at the four addresses. Thus, ByBit submits that it is entitled to compensation for the value of the cryptographic assets.

Pending Issues

28. There are two pending issues in this case:

(a) Whether USDT can be held as property in trust;

(b) Whether ByBit is entitled to summary judgment.

Issue 1: USDT can be held as property in trust

29. Despite the novelty of cryptocurrencies, they have not only been recognized as having value transferability, but also appear on the balance sheets of companies that hold them, as the accounting industry is developing standards for valuing and reporting these assets. The Monetary Authority of Singapore (MAS) recently published a consultation paper on proposed amendments to the Payment Services Act, which will implement segregation and custody requirements for digital payment tokens: MAS, “Response to Public Consultation on Proposed Regulatory Measures for Digital Payment Token Services” published on 3 July 2023. The proposed amendments reflect the reality of identifying and segregating such digital assets in practice, thus supporting the view that they can be legally held in trust.

30. Furthermore, cryptocurrencies have been widely recognized as property by court rules. In Rule 22 of the 2021 Court Rules, which deals with the execution of judgments and orders, O 22 r 1(1) defines “chattels” to include “cash, debts, deposits, bonds, stocks or other securities, membership of a club or association, and cryptocurrencies or other digital currencies” [emphasis added]. Therefore, cryptocurrencies are explicitly recognized as a form of property subject to execution orders. Although the framers of the 2021 Court Rules did not specify the specific methods for enforcing such execution orders (see Civil Justice Commission Report (29 December 2017) (Chair: Justice Andrew Phang)), it is worth noting that the procedures for serving a notice of seizure on an individual or entity that owns or controls chattels (O 22 r 6(4)(b)) or for registering ownership of intangible chattels (2021 Court Rules O 22 r 6(4)(g)) can logically be extended to cryptocurrencies or other digital currencies.

31. Cryptocurrencies are not classified as tangible assets because we cannot physically possess them like we do with cars or jewelry. They do not have a fixed physical identity. However, cryptocurrencies do manifest in the physical world, albeit imperceptibly to humans. The combination of private and public keys unlocks the previous cryptographic lock and locks the unspent transaction outputs of the cryptocurrency to the holder’s public address on the blockchain. Professor Kelvin Low argues that the rights of the private key holder to the unspent transaction outputs (UTXO) of the cryptocurrency, which are locked to the holder’s public address on the blockchain, are “properly conceptualized as narrow rights to the cryptocurrency”: see Kelvin FK Low, “Trusts of Cryptoassets” (2021) 34(4) Trust Law International 191. This physical manifestation at the digital bit and byte level is not permanent and changes with each transaction. Nevertheless, we identify the specific digital tokens that are involved, much like naming a river, even though the water in the river is constantly changing.

32. Although some people are skeptical about the value of cryptocurrencies, it is worth remembering that value is not inherent in objects. While we say that certain materials are expensive, such as gold being more valuable than wood, this judgment is made by collective human thinking. It is also a judgment that changes with the environment. On a sinking ship, a floating chair is more valuable than a golden throne.

33. This description of cryptocurrencies indicates that modern humans can define and identify them, enabling them to be traded and evaluated as holdings. They undoubtedly meet the maxim frequently cited by Lord Wilberforce in National Provincial Bank v Ainsworth (1965, 1 AC 1175, p. 1248):

“Before a right or interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.”

34. The next question is whether USDT can be classified as choses in action. The argument against classifying cryptocurrencies as choses in action is based on the origin of this category being rights enforceable against persons through litigation, such as the right to receive payment of money or a debt, or contractual rights. There is no separate counterpart with rights against cryptocurrency holders. However, over time, the category of choses in action has expanded to include documents evidencing incorporeal property rights and ultimate incorporeal rights, such as copyright: see W.S. Holdsworth, “A Historical Treatise on Choses in Action” (1920) 33(8) Harvard Law Review 997. As Holdsworth points out in the introduction to his authoritative article on page 998:

“Obviously, the diversity of things included in the category of choses in action necessarily involves a corresponding diversity of legal incidents of the different classes of choses in action. In fact, their legal incidents are very dissimilar; because they are themselves different, they must necessarily be dealt with differently in the courts and by the legislature. It is impossible to treat the law of choses in action exhaustively; the different classes of choses in action are commonly dealt with not under this general head, but under the appropriate branches of law to which they more properly belong. Thus, if we wish to know the law about bills and notes, shares, copyright, or patents, we do not look for it in the discussion of choses in action, but in books on commercial law, company law, or special treatises on these particular subjects.”

35. Holdsworth’s historical survey demonstrates the diversity of incorporeal property classified as choses in action. This diversity shows that the category of choses in action is broad, flexible, and not closed. It is these characteristics that explain and prove the maxim frequently cited by Justice Fry in Colonial Bank v Whinney (1885, 30 Ch D 261, p. 285): “All personal things are either in possession or in action. The law knows no tertium quid between them.”

36. Therefore, my conclusion is that, in principle, holders of encrypted assets have an intangible property right recognized by common law as an actionable thing, and therefore can be enforced in court. Although some might argue that this conclusion has elements of circular reasoning, as one could also say that the right to enforce in court is what makes it an actionable thing, this mode of reasoning does not differ significantly from how the law treats other social structures, such as currency. It is only because seashells or beads or differently printed paper money are universally accepted as exchangeable value that they become currency. The acceptance of currency is due to collective acts of mutual trust. This is reflected in the famous observation by Lord Mansfield in Miller v. Race (1758), 1 Burr 452, at p. 457, where he noted that something “universally accepted by mankind” as currency is endowed with “the credit and circulation of money in all intents and purposes.”

37. ByBit also relies on the current terms of service of USDT, which provide for the contractual right of redemption. Article 3 includes the following provisions regarding the right of redemption:

Tether issues and redeems Tether tokens. Tether tokens can be used, held, or exchanged online as long as someone is willing to accept them. Tether tokens are backed 100% by Tether’s reserves. Tether tokens are denominated in a range of fiat currencies. For example, if you purchase EURT, your Tether tokens will be pegged to the euro at a 1:1 ratio. If you issue EURT worth 100.00 euros, Tether will hold reserves worth 100.00 euros to back these Tether tokens. The composition of the reserves used to back Tether tokens is entirely controlled by Tether and entirely at Tether’s discretion. Tether tokens are backed by Tether’s reserves, including fiat currencies, but Tether tokens themselves are not legal tender. Tether does not issue Tether tokens for consideration consisting of digital tokens, such as Bitcoin; only fiat currency is accepted upon issuance. To be able to issue or redeem Tether tokens directly with Tether, you must be a verified customer of Tether. This provision has no exceptions. The right to redeem or issue Tether tokens is your personal contractual right. If, due to lack of liquidity, unavailability, or loss of any reserves held by Tether to support Tether tokens, it becomes necessary to delay redemption or withdrawal of Tether tokens, Tether reserves the right to delay redemption or withdrawal of Tether tokens, and Tether reserves the right to redeem Tether tokens by physically exchanging the securities and other assets held in the reserves. Tether makes no representation or warranty as to whether Tether tokens will be tradable on the website at any future time or even if Tether tokens can be traded on the website.

38. The terms of service are governed by BVI law. ByBit has submitted a legal opinion from Sam Goodman, a qualified attorney in the BVI, which states that under BVI law, the contractual right of redemption of USDT held by “verified customers” of Tether Limited can be enforced by bringing a claim against Tether Limited. ByBit relies on this point to support its argument that USDT is an actionable thing.

39. In my analysis, this feature of USDT may constitute another transaction that USDT holders may have, but its existence is not necessary for the conclusion that the rights represented by USDT are themselves transactional.

Question 2: ByBit has the right to obtain a judgment

40. ByBit submits that it has established a prima facie case, having overcome the hurdle of proving that there is a good arguable case to obtain a worldwide freezing order. Conversely, Ms. Ho is unable to prove that there is a fair or reasonable prospect of a genuine defense.

Jason does not exist

41. The inference that ByBit seeks to draw from all the evidence, and which seems to me to be more likely than not, is that Jason does not exist (or at least did not play the role attributed to him by Ms. Ho). There is indeed persuasive evidence that Ms. Ho fraudulently transferred both the cryptocurrency and fiat assets into her own name. As mentioned in [25] above, there is direct evidence that Ms. Ho owns the wallet associated with address 1, and indirect evidence of her unexplained profligacy. Exploiting her employment relationship with WeChain, the company engaged to handle ByBit’s payroll account, and abusing the trust placed in her, Ms. Ho manipulated the cryptocurrency Excel file and misappropriated the cryptocurrency and fiat assets.

Inferred trust

42. An institutional constructive trust arises when assets are stolen and there is a remedial claim available in respect of the stolen assets. As Lord Browne-Wilkinson observed in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 1 AC 669 at 716:

I accept that stolen money can be traced in equity. But in this case the proprietary interest enforced by the tracing is that which arises under a resulting trust rather than a constructive trust. Although it is difficult to find clear authority for that proposition, where property is obtained through fraud, the recipient of the fraud is presumed to be in trust for the defrauded: the property is recoverable and can be traced in equity. Accordingly, a baby which obtains property through fraud is under a duty to restore it: Stocks v. Wilson [1913] 2 KB 235, 244; R. Leslie Ltd. v. Sheill [1914] 3 KB 607. Funds stolen from a bank account can be traced in equity: Bankers Trust Co. v. Shapira [1980] 1 WLR 1274, 1282C-E. See also McCormick v. Grogan (1869) LR 4 HL 82, 97.

43. I should add that even if Ms. Ho were to mix the USDT in her online custodial wallets with USDT balances held by others or mix the fiat assets with other money in her bank accounts, a constructive trust may still arise: Foskett v McKeown [2001] 1 AC 102.

44. Given my findings of fact, I declare constructive trusts over the cryptocurrency and fiat assets. ByBit is the legal and beneficial owner of the cryptocurrency. In view of the relief I grant on the basis of the institutional constructive trust, I do not need to consider alternative bases in remedial constructive trust and unjust enrichment.

45. ByBit seeks a series of property and personal orders in accordance with its investigation, which I now grant as follows:

(a) Declaring constructive trust over the cryptocurrency and fiat assets;

(b) Ordering Ms. Ho to immediately pay ByBit $647,880 (the value of the cryptocurrency assets in Wallets 3 and 4);

(c) Ordering Ms. Ho to immediately pay ByBit SGD 117,238.46 (the value of the fiat assets);

(d) Ordering Ms. Ho to immediately transfer all remaining funds in Wallet 1 to ByBit until the total reaches $3,561,840 (the value of the cryptocurrency assets transferred into Wallets 1 and 2);

(e) Regarding the remaining cryptocurrency assets transferred into Wallets 1 and 2 after deducting the transfer amount in (d) (referred to as the “remaining amount” with a value of $3,561,840 in USDT):

(i) Ordering Ms. Ho in respect of the remaining amount, or any money or funds representing the value of the remaining amount that she owns or has received, or any account of a person who receives them or holds them on her behalf;

(ii) A tracing order in respect of the remaining amount or any part thereof for ByBit to trace and recover the converted assets or their proceeds (if any);

(iii) An order for Ms. Ho to pay to ByBit all amounts determined to be due to ByBit after the liquidation account.

46. I also calculate interest on the problem assets transferred by Ms. Ho from the date of transfer to the date of judgment at the standard annual interest rate of 5.33%, which is paid in [45(b)] and [45(c)].

Conclusion

47. After making the summary judgment in favor of ByBit against Ms. Ho, I also award ByBit costs of $45,000.00 (taking into account the novelty of the legal issues in dispute and the work done in seeking interim relief, of which the costs have been included) and expenses of $11,500.00.

Philip Jeyaretnam

High Court Judge

Quek Wen Jiang Gerard, Kyle Gabriel Peters, Ling Ying Ming Daniel, Mato Kotwani, and Chua Ze Xuan (PDLegal LLC) for the plaintiff;

The first to sixth defendants were absent and not represented.

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