Cryptocurrency Dispute: Court of First Instance grants interim-interim injunction over 999 Bitcoins
On 8 October 2021, Keith Yeung J granted an interim-interim injunction over 999.9900261 Bitcoins which are the subject of dispute in Yan Yu Ying v. Leung Wing Hei, HCA 2295/2019. The Decision (published as [2021] HKCFI 3160) illustrates the interplay between delay, expert evidence and the need of doing practical justice in the Court’s exercise of discretion in granting interim-interim injunctions in a cryptocurrency dispute. Jasper Wong appeared as junior counsel for the Plaintiff.
Criminal trial
The Plaintiff (“P”) contacted the Police in August 2018 to complain that the Defendant (“D”) misappropriated her Bitcoins. D was arrested in September 2018 and subsequently prosecuted for a number of offences as a result of P’s complaint.
On 1 August 2019, the Police informed P that letters of no consent had been issued to a number of banks and companies, practically freezing the subject Bitcoins and D’s assets.
Prior to D’s criminal trial, P applied for an injunction with interim‑interim relief before Lisa Wong J on 10 January 2020. Interim-interim relief was refused and the case was adjourned for substantive argument after the criminal trial.
D was acquitted in the District Court on 4 December 2020. One aspect of the evidence adduced by D and considered by the District Court comprised certain messages between P and D on an instant messaging platform called Secret‑Message. Those messages, if genuine, support D’s case that the Bitcoins were swapped by consent with The Public Coin, said to be another and a newer type of cryptocurrency. The Prosecution case is that the Secret-Message communications were forged; on the evidence, however, the District Court ruled that the Prosecution could not prove their forgery beyond reasonable doubt.
Following D’s acquittal, the letters of no consent issued by the Police lapsed.
Application for injunctive relief
Subsequent to D’s acquittal, P started to gather expert evidence to show, amongst others, how the Secret‑Message communications could have been forged.
Relying on this and other evidence, on 30 September 2021, P applied for interim-interim injunction ex parte on notice before the Summons Judge. The relief sought is a proprietary or Mareva injunction to restrain D from dealing with the subject Bitcoins and assets up to the value of HK$328,363,760 – the value of the subject Bitcoins according to the Summons.
Grant of proprietary injunction by Court of First Instance
The Court accepted that, in light of the lapse of the letters of no consent following D’s acquittal, there was a material change of circumstances which permit the Court to re-consider the question of interim-interim relief.
D opposed the ex parte on notice injunction on the ground of delay. It was submitted on his behalf that there was a lack of extreme urgency and that P was aware of the Secret-Message messages before the criminal trial, so it was no excuse for P to only start gathering related expert evidence after D’s acquittal.
Applying Convoy Collateral Ltd v Cho Kwai Chee & Others [2020] 6 HKC 81, the Court observed that delay per se would not necessarily bar relief, and the ultimate question is still whether the plaintiff could show a real risk of dissipation despite delay. In the Court’s view, the technical aspects of the present case are complicated; it would be unrealistic to expect P to compile the expert evidence before D’s acquittal and before she had obtained the transcript of the criminal proceedings.
Thus, taking into account the high value of the Bitcoins (HK$328,363,760), as well as D’s indication that there would be difficulty in footing his legal expenses for senior counsel without the Bitcoins, the Court held that the balance of convenience was in favour of the grant of interim-interim injunction.
The Court however held that the balance of fairness lies in the grant of the proprietary part of the injunction only (not the Mareva injunction which was also sought), so that the subject matter of the dispute is preserved. To avoid potential oppression to D, the Court also confined the scope of the order and the disclosure obligations to those Bitcoins that remain in the possession custody and control of D.
Representation:
Jasper Wong (led by Laurence Li SC and with Foster Yim) appeared for the Plaintiff.
| Jasper Wong
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| Jasper graduated with a Double First in Law at the University of Cambridge. He was the first recipient of the Sir Oswald Cheung Scholarship at the University of Hong Kong, which is awarded to the best HKU PCLL applicant who intends to join the Bar each year. Prior to becoming a barrister, Jasper served as judicial assistant at the Court of Final Appeal from 2017 to 2018.
He also appeared as sole advocate in Re Chen Te-ming (3 August 2020, HCB 2446/2017), where the Court granted the annulment of a bankruptcy order on the ground of improper service. The application involved issues of the relevance of post-bankruptcy conduct and unrecognised foreign judgment. Find out more from Jasper’s profile. |
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.