Written by Richard Wee, Muhammad Anwar, Ng Chin Yang
In the dynamic realm of cryptocurrencies, a legal clash has emerged over the ownership rights to Crypto and Fiat Assets. This case dives into the essence of digital property and spotlights the evolving legal framework in the rapidly expanding digital economy.
We aim to illuminate the legal transformation required to navigate the intricacies of cryptocurrency ownership and transactions by dissecting the court’s ruling and its potential implications.
Summary of Facts
The case revolves around ByBit’s quest for ownership of Crypto and Fiat Assets associated with a former employee, Ms Ho. ByBit compensated its staff with cryptocurrencies, managed through Ms Ho’s employer, WeChain. Suspicion arose when substantial sums were diverted into her personal accounts, sparking legal action.
ByBit unearthed anomalous transactions pointing to Ms Ho’s involvement. These transactions raised concerns about the ownership of Crypto Assets, particularly USDT and Fiat Asset. ByBit initiated legal proceedings, asserting rightful ownership and alleging fraudulent conduct.
Ms Ho countered by implicating a cousin named ‘Jason’. She maintained that Jason manipulated the transactions without her knowledge. ByBit, however, contested Jason’s existence and presented evidence supporting Ms Ho’s direct participation in the transactions.
This dispute poses crucial questions about the essence of cryptocurrency ownership and trust. The case hinges on whether cryptocurrencies constitute property and if a constructive trust can be established. It underscores the evolving legal challenges in the digital economy and the necessity for adaptable legal frameworks to address the complexities of cryptocurrency ownership and transactions.
Whether USDT is capable of being held in trust?
The case grapples with whether cryptocurrencies, primarily United States Dollar Tether (‘USDT’), can be classified as property suitable for trust. The recognition of cryptocurrencies as tradable assets and their inclusion on corporate balance sheets indicate their growing acceptance as valuable entities. The legal inquiry revolves around whether the rights embodied by cryptocurrencies, despite their intangible nature, meet the criteria for things in action — an expanding category encompassing various forms of incorporeal property.
The court acknowledges the inventive nature of cryptocurrencies and their digital essence. Although devoid of physical form, cryptocurrencies possess definable characteristics recognised by modern society, enabling them to be traded and valued like conventional holdings. The court’s decision underscores that value is not intrinsic to objects but arises from collective human perceptions and acceptance.
Additionally, the court underscores the contractual facet of specific cryptocurrencies like USDT. The terms of service provide a right of redemption. ByBit’s legal opinion, endorsed by a qualified British Virgin Islands (BVI) counsel, supports the notion that verified holders of USDT possess a contractual right to redeem, enforceable through legal means. The case underscores the ongoing evolution of legal recognition for digital assets like cryptocurrencies and highlights the necessity for adaptive legal frameworks to accommodate their distinctive attributes.
Analysis and Comments
The issue of whether cryptocurrency is ‘property’ which is capable of forming the subject matter of a trust has also been discussed in other jurisdictions. One of the current cases in point is Re Gatecoin Limited  HKCHI 914 decided in the Hong Kong Court of First Instance. Judges in this case have referred to the decisions in other jurisdictions, and followed the judgement of New Zealand case Ruscoe v Cryptopia Ltd  NZHC 728. Gendall J in the New Zealand case concluded that cryptocurrency satisfies the four criterion for ‘property’ as explained in English case National Provincial Bank v Ainsworth  AC 1175 (‘Ainsworth’) and is a type of intangible property in that:
- It is definable;
- It is identifiable by third parties;
- It is capable of assumption by third parties; and
- It has some degree of permanence or stability.
The Hong Kong Court is of the opinion that their definition of ‘property’ is an inclusive one and intended to have a wide meaning, and since their courts have consistently applied and followed the principles enunciated in Ainsworth, hence they came to the conclusion that cryptocurrency is ‘property’.
Clearly, the common feature for the Courts of Singapore, Hong Kong, and New Zealand to conclude cryptocurrency is proprietary in nature is that it fulfils the four requirements under the Ainsworth case. In Malaysia, this case was referred to in John Denis de Silva v Crescent Court Management Corp  3 MLJ 631. Abdul Malik Ishak J in this case opined that:
I am of the considered view that the general definition of a proprietary interest as propounded by Lord Wilberforce in Ainsworth is an illuminating and apt definition deserving a high degree of compliment.
That being said, despite there is no existing Malaysian case on this point of law, Malaysian courts might be open to embrace the proposition that cryptocurrency is ‘property’.
More importantly, another implication brought by the ByBit case is that cryptocurrency is classified as choses in action. As a result, the holder of a crypto asset has in principle an incorporeal right of property recognisable by the common law as choses in action and therefore enforceable in court.
This decision provides clarification regarding the legal nature of crypto assets, and also establishes that the cryptocurrency owners are offered greater protection when seeking to enforce their rights in respect of their crypto assets.
Published on 26 October 2023