SMU Academy Graduate Certificate in Law & Technology PDF

SMU Classification: Restricted SMU Academy Graduate Certificate in Law & Technology Module 8: Crimes of the Digital Economy Day 2 S M U A C A D Bryan Leow E M1 Y / ac...

SMU Classification: Restricted SMU Academy Graduate Certificate in Law & Technology Module 8: Crimes of the Digital Economy Day 2 S M U A C A D Bryan Leow E M1 Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 Introduction / Housekeeping Rules S M U A C A D 2 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Areas that will be covered Digital Evidence / Importance of Computer Forensics Investigating and taking enforcement action against digital crimes committed overseas Recovering assets moved out of Singapore Class Assessment (Hypotheticals) S M U A C A D 3 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 Digital Evidence & the importance of computer forensics S M U A C A D 4 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Evidence In a criminal case, the Prosecution must prove its case beyond a reasonable doubt – this is the Standard of Proof. As it is the Prosecution who is asserting the accused’s guilt, it would be necessary for the Prosecution to adduce evidence to that effect – this is the Burden of Proof. S M U A C A D 5 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Evidence (cont’d) Evidence is admissible if it relates to a fact in issue. Evidence includes oral evidence (which are statements made by witnesses before a Court) and documentary evidence (which are documents produced for the inspection of the court). After evidence has been admitted, the court will determine the appropriate weight to be accord to it. S M U A C A D 6 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Digital Evidence It specifically refers to probative information which is either transmitted or stored in digital format, and which could then be used at trial or court case. Before it can be accepted by the Court, it must be determined whether the evidence is authentic, relevant, hearsay or whether copies will be acceptable or whether the original must be produced. S M U A C A D 7 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Why is Digital Evidence Important Provides unique information that may not otherwise be available in tangible form or from other sources. Example: Print out of an electronic version of a document as compared to a hard copy printout of the same record. S M U A C A D 8 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Key Features of Digital Evidence Dependent on machinery to process Volume and Replication Metadata Falsification and deletion See SMU article: Educating for the future, Teaching Evidence in the Technological Age S M U A C A D 9 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Dependency on Machinery Digital evidence is only rendered intelligible through the use of third party hardware and software Cost of evidence retrieval may increase if the hardware / software is difficult to obtain or obsolete Important to have thorough understanding of this process Why – because potentially useful information may be accumulated at every point of this process (e.g. hardware / software may provide evidence in the form of metadata and logs) S M U A C A D 10 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Volume and Replication Information is nowadays easily generated with multiple copies of the same document stored across a variety of media, potentially located across jurisdictions Challenging for evidence to be gathered and stored in a systematic and meaningful fashion Not readily accessible except at significant cost S M U A C A D 11 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Metadata Information that is hidden from plain view when an electronic document is viewed on the screen Six main types of metadata Descriptive metadata – what, when, who … Structural metadata – data about data Administrative metadata – background info Preservation metadata – digital signatures Provenance metadata – digital history Use metadata – footprint history S M U A C A D 12 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Example of Metadata Metadata Data S M U A C A D 13 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Falsification and deletion Easily altered or tampered with But difficult to destroy Important to have a working knowledge of digital forensics to properly dissect and examine electronic documents S M U A C A D 14 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Use of Digital Evidence at Trial The Evidence Act provides the framework of rules for the types of evidence that can be admitted as evidence in Court proceedings Electronic records are defined under s 3 of the EA as “a record generated, communicated, received or stored by electronic, magnetic, optical or other means in an information system or transmitted from one information system to another.” S M U A C A D 15 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Use of Digital Evidence at Trial Key test is relevancy Where digital evidence is concerned, it might be a fact that is necessary to explain or introduce relevant facts: s 9 EA See Illustration (g) of s 9 EA “A seeks to adduce evidence against B in the form of an electronic record. The method and manner in which the electronic record was (properly or improperly) generated, communicated, received or stored (by A or B), the reliability of the devices and the circumstances in which the devices were (properly or improperly) used or operated to generate, communicate, receive or store the electronic record, may be relevant facts (if the contents are relevant) as authenticating the electronic record and therefore as explaining or introducing the electronic record, or identifying it as the relevant electronic record to support a finding that the record is, or is not, what its proponent A claims.” S M U A C A D 16 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Use of Digital Evidence at Trial Contents of the documents may be proved by primary or by secondary evidence: s 63 EA Documents must be proved by primary evidence generally: s 66 EA Primary evidence means the document itself is produced for the inspection of the court: s 64 EA If a copy of a document in the form of an electronic record is shown to reflect that document accurately, then the copy is primary evidence: Explanation 3 to s 64 EA An electronic record, which has been manifestly or consistently acted on, relied upon, or used as the information recorded or stored on the computer system (the document), is primary evidence of that document: Illustration (a) to s 64 EA If the electronic record has not been manifestly or consistently acted on, relied upon, or used as a record of the information in the document, the electronic record may be a copy of the documentS M U and treated as secondary evidence of that document: 17 Illustration (b) to s 64 EA A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Presumptions for Digital Evidence at Trial Four presumptions in relation to electronic records: 1. Ordinarily produces or accurately communicates an electronic record: s116A(1) EA 1. Generated, recorded or stored in the usual ordinary course of business by a neutral third party: s116A(2) EA 2. Generated, recorded or stored by an adverse party to the party seeking to adduce the evidence: s116A(3) EA 3. Recorded or stored from a document produced pursuant to an approved process: s116A(6) EA S M U A C A D 18 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 st Presumption Where a device or a process is one that, or is of a kind that, if properly used, ordinarily produces or accurately communicates an electronic record, the court shall presume that in producing or communicating that electronic record, the device or process produced or accurately communicated the electronic record unless evidence sufficient to raise doubt about the presumption is adduced. Where the party is able to prove this, it will be a relevant fact for the Court to make such a presumption: Illustration to s 116A(1) EA S M U A C A D 19 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 st Presumption (cont’d) The legislative purpose of s 116A(1) of the Evidence Act is to facilitate the use of electronic records as forensic evidence The provision was intended to avoid requiring the person who relies on the electronic record to have detailed technical knowledge of the process behind its production It suffices that the person has a broad understanding of the process. S M U A C A D 20 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Example of 1 st Presumption The presumption will arise in respect of printed e-mails The person in question has a broad understanding of the process The person being lay operator of his email system (the process) on his computer (the hardware) and makes use of an email client (the software) The Court shall presume, unless evidence to the contrary is adduced, that the email was received in his e-mail [inbox] or [sent] folder “if properly used, ordinarily produces that electronic record or document” * See Super Group Ltd v Mysore Nagaraja Kartik 4 SLR 692 at and (*) S M U A C A D 21 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 2 nd Presumption The court shall presume that any electronic record generated, recorded or stored is authentic, if it is established that the electronic record was generated, recorded or stored in the usual and ordinary course of business by a person who was not a party to the proceedings on the occasion in question and who did not generate, record or store it under the control of the party seeking to introduce the electronic record, unless evidence to the contrary is adduced. The fact that the electronic record was generated, recorded or stored in the usual and ordinary course of business by C, a neutral third party, is a relevant fact for the court to presume that the electronic record is authentic: Illustration to s 116A(2) EA S M U A C A D 22 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Example of 2 nd Presumption Chat logs stored by the forum owner, relied on by the Prosecution for the purpose of an offence of distributing information that is intended to promote conduct of commercial sex with minors under 18 outside of Singapore S M U A C A D 23 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 3 rd Presumption Where an electronic record was generated, recorded or stored by a party who is adverse in interest to the party seeking to adduce the evidence, the court shall presume that the electronic record is authentic in relation to the authentication issues arising from the generation, recording or storage of that electronic record, unless evidence to the contrary is adduced. The fact that the electronic record was generated, recorded or stored by the adverse party, who opposes the relevance of the evidence, is a relevant fact for the court to presume that the electronic record is authentic: Illustration to s 116A(2) EA S M U A C A D 24 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 4 th Presumption Where an electronic record was recorded or stored from a document produced pursuant to an approved process, the court shall presume, unless evidence to the contrary is adduced, that the electronic record accurately reproduces that document: s 116A(6) EA The conditions include using a certified imaging system (known as an “approved process” under the Act) which has been certified by an independent body appointed by the Ministry of Law (known as a Certifying Authority under the Act) as reasonably ensuring the accurate conversion of physical documents to electronic images. S M U A C A D 25 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is computer forensics The application of investigation and analysis techniques to gather and preserve evidence from a particular computing device in a way that is suitable for presentation in Court The goal is to perform a structured investigation while maintaining a documented chain of evidence to find out exactly what happened on a computing device and who was responsible for it S M U A C A D 26 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is encryption Data encryption is the process where data is translated into a code, so that only people with access to a decryption key (password) can read it The converse of encryption is decryption where the encrypted information is decoded by a key/password Encryption is one of the most popular and effective data security methods used by organisations S M U A C A D 27 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Examples of encryption Example of symmetric encryption – rotational cipher Cleartext: T O W N Key: 2 2 2 2 Ciphertext V Q Y P Asymmetric encryption on the other hand, uses both a public key and private key for encryption. Sender encrypts Private Key plaintext using a Recipient then public key before uses private key sending to decrypt the plaintext data Public Key S M U A C A D 28 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Considerations in determining what electronic records are available Electronic evidence or records come in many different types These include word documents, excel spreadsheets, browsing history, or text messages on your handphone But at its core, it is an event memoralized by a computing device The question therefore to ask is what events and details are being recorded and how they are relevant to the computer and computer assisted crimes or even a civil matter Helps to frame the issue and identify what records are created. S M U A C A D 29 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Considerations in determining what electronic records are available Understanding why and how particular records are created and what information is collected is also important Example of an online transaction made by a credit card Records might show Internet Protocol address, customer account information (including personal particulars or the credit card number) or transactional history, to assist to identify the person making the transaction Timestamp information would also yield useful information for creating a chronology or showing the sequence of unfolding events S M U A C A D 30 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Overview of the forensic process Extracting data from a Mobile Device Main Challenges There is multiple different types of hardware and software standards, making a universal standard tool nearly impossible to create Built-in security features to protect user data and privacy Anti-forensic techniques Alteration of the data Communication shielding S M U A C A D 31 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Read more about the FBI hack here but also see the past context of the issue here where Apple has refused to write backdoors into their system S M U A C A D 32 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Methodology of the forensic process Four phases in the mobile forensic process Phase 1: Phase 2: Phase 3: Phase 4: Seizure Acquisition Analysis Reporting Media → Data → Information → Evidence S M U A C A D 33 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Phase 1: Seizure To collect and preserve the digital evidence in the mobile device in its original stage Entails disabling the phone from both the mobile network, internet, Bluetooth, tethering, and any other kind of external connections Incoming traffic from the network (such as communication with installed apps) can result in the contamination of potential evidence To prevent activation of destruction mechanisms (remote kill- switches) which can be configured on the device, that result in deletion of data or the locking of the device S M U A C A D 34 E M Y / academy.smu.edu.sg / SMU Classification: Restricted S M U A C A D 35 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Phase 2: Acquisition Once device has been seized, an exact sector level duplicate of the media is created through “Imaging” or “Acquisition” The acquired image is then verified through a process known as “hashing”* to ensure that the evidence is still in its original stage. The forensic examiner would then need to select the right method and approach for the analysis phase, having reference to the model and type of the device being examined S M U A C A D 36 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Hashing / Forensic Imaging Hashing is the practice of using an algorithm to map data of any size to a fixed length. Creates a bit by bit copy (or image) of a digital storage device (the storage device in the phone) This image is an exact replica of the original storage device, including all data, metadata, and even deleted or hidden files. Forensic imaging is essential for preserving the integrity of digital evidence and ensuring its admissibility in legal proceedings S M U A C A D 37 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Hashing / Forensic Imaging The purpose of hashing is to verify that a file or piece of data has not been altered. By creating a forensic image, investigators can work with a copy of the data without altering or damaging the original evidence. It works by having each hashing algorithm output at a fixed length, with each hash value being unique. As no two files can create the same hash value, any alteration will produce a different value. S M U A C A D 38 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What is Hashing / Forensic Imaging Tools include EnCase, FTK Imager, dd (Unix/Linux command-line tool), and Magnet AXIOM S M U A C A D 39 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Phase 3: Analysis There are three general levels of analysis of the contents of the mobile device 1st Level – Taking pictures of the phone screen while scrolling through the relevant information 2nd Level – Use of Forensic Tools to recover identifiable objects 3rd Level – Physical Recovery Process (“Chip-off”) NB: there may also be relevant mobile phone evidence found outside of the mobile phone (e.g. where phone is synced to 3rd party apps, like Google, and the information may have instead been stored by the servers of the application provider, rather than on the phone itself) S M U A C A D 40 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Phase 3: Analysis There are three general levels of analysis of the contents of the mobile device 1st Level – Taking pictures of the phone screen while scrolling through the relevant information 2nd Level – Use of Forensic Tools to recover identifiable objects 3rd Level – Physical Recovery Process (“Chip-off”) NB: there may also be relevant mobile phone evidence found outside of the mobile phone (e.g. where phone is synced to 3rd party apps, like Google, and the information may have instead been stored by the servers of the application provider, rather than on the phone itself) S M U A C A D 41 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Phase 4: Reporting The culmination of the entire forensic process Whatever data is collected is presented in a report How the report should be structured would depend on the audience that the report is intended for Where the report is intended for Court, it will usually be annexed to an affidavit of evidence in chief (for civil matters) or the expert may be required to give oral evidence at trial to adduce the contents of his report (for criminal matters) S M U A C A D 42 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 Investigating and taking enforcement action against digital crimes committed overseas S M U A C A D 43 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Key Challenges for law enforcement Anonymity afforded by the Internet Transnational nature of cybercrime Speed and scale of perpetration Ease of access to cybercrime tools and services S M U A C A D 44 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Steps taken to address the key challenges Establishment of the Singapore Police Force Cybercrime Command Use of Relevant Legislation International engagement and cooperation S M U A C A D 45 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted SPF Cybercrime Command Set up in December 2015 Integrates SPF’s cyber-related investigations, forensics, intelligence and crime prevention capabilities within a single command Strengthens coordination between SPF and partner agencies such as AGC and CSA S M U A C A D 46 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Use of Relevant Legislation Extraterritorial reach of the CMA Overview of Mutual Assistance Criminal Matters Act Overview of Extradition Act S M U A C A D 47 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Extraterritorial reach of the CMA Whether Court has jurisdiction to try an offence Location of Accused Location of the computer, Jurisdiction to hear and impose program, or data sentence (Y/N) In Singapore Whether in or outside of Singapore Yes: s 13(3)(a) CMA Whether in Singapore or outside of In Singapore Yes: see s 13(3)(b) CMA Singapore Whether in Singapore or outside of Whether in Singapore or outside of Yes if the offence causes, or creates a Singapore Singapore significant risk of, serious harm in Singapore: see s 13(3)(c) read with s13(4) CMA S M U A C A D 48 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Overview of the Mutual Assistance in Criminal Matters Act Facilitates the provision and obtaining, by Singapore, of international assistance in criminal matters Forms of assistance include: Obtaining of evidence and other articles; The making of arrangements for persons to give evidence or assistance in criminal investigations; Recovery and forfeiture of, and the restraining of dealings in, proceeds and instrumentalities of crime; Execution of requests for search and seizure; Location and identification of persons; and S M U Service of documents 49 A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Overview of the Extradition Act Extradition is the formal process by which an individual who is overseas, and has been accused / convicted of a crime in Singapore, is handed to the jurisdiction of the country in which the crime was committed Previously, an extraditable offence includes “an offence against the law relating to the securing of computer material against unauthorised access or modification” as well as “obtaining property or credit by false pretences or any other offence in respect of property involving fraud”: First Schedule EA, read with s S M U 2 and s 14 EA. 50 A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Modern Extradition Act Under the modernised extradition regime, the determination of whether an offence is extraditable will use a threshold approach, i.e., an offence is extraditable if it attracts a maximum punishment of two years or any more severe punishment, subject to a list of excluded offences Expands on the restrictions on surrender of persons Simplifies the evidential procedures for extradition proceedings Centralise review procedures for extradition proceedings Fugitives can consent to their extradition Collate extradition offences arising from Singapore’s obligations under multilateral conventions / consolidate frameworks for the extradition regimes S M U A C A D 51 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted International engagement and cooperation Fostering engagement cooperation Operational level Regional level International level Building capacities and capabilities through collaboration at the regional and global levels S M U A C A D 52 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted UN Convention on Cybercime Adopted on 9 December 2024 by the UN general assembly (link here) The purposes of this Convention are to: (a) Promote and strengthen measures to prevent and combat cybercrime more efficiently and effectively; (b) Promote, facilitate and strengthen international cooperation in preventing and combating cybercrime; and (c) Promote, facilitate and support technical assistance and capacity-building to prevent and combat cybercrime, in particular for the benefit of developing countries. S M U A C A D 53 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted UN Convention on Cybercime Two interesting points I observed Permitting an extension of jurisdiction where the offence is committed against a national of that State Party (Art 22(2)(a)); and the State itself If the offender is in a territory of a State Party, and that State Party does not extradite him on the grounds that the person is their national, there appears to be a mandatory obligation that the State Party must submit the case without undue delay to its competent authorities for the purposes of prosecution. Those authorities shall take their decisions and conduct their proceedings in the same manner as in the case of any other offence of a comparable nature under the domestic law of that State (Art 37(11)) S M U A C A D 54 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Online Criminal Harms Act Enables government to take Swift action against criminal activity carried out online; and Proactively disrupt scams and malicious cyber activities before they harm more victims Progressively operationalised since 1 Feb 2024 Requires certain providers of designated online services to put in place upstream measures to S M U A C A D proactively prevent and disrupt scams 55 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Online Criminal Harms Act Key Features Directions can be issued to any online service through which criminal activities could be conducted, and will be applicable to criminal offences specified in the First Schedule of the Act, such as offences that affect national security, national harmony, and individual safety S M U A C A D 56 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Online Criminal Harms Act Directions can be issued when it is suspected that any website, online account, or online activity may be used for scams or malicious cyber activities Government can also require designated online services to proactively disrupt scams and malicious cyber activities affecting people in Singapore S M U A C A D 57 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted The next step in prevention? MHA is considering to empower Police officers to restrict the banking transactions of scam victims and targets of ongoing scams, if there is reasonable belief that they will make money transfers to scammers AND it is necessary to protect the scam victim The restriction will be time-limited (30 days, with 5 further extensions), as the intent is to give the Police time to convince the victims that they are being scammed 2nd reading of the Protection from Scams Bill took place on 7 Jan 2025 S M U A C A D 58 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Discussion Class discussion: With reference to the two articles uploaded, what do you think the authorities would do in a case where a request under MACMA or EA is denied? Why do you think they adopt this position? 1. Michael Fay’s case here 2. David Roach’s case here and here S M U A C A D 59 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 Recovering assets moved outside of Singapore S M U A C A D 60 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Differences between criminal and civil proceedings Criminal proceedings – aimed at deterrence and/or criminal punishment Civil proceedings – vindication of civil rights (i.e. getting compensation / recovering your money) S M U A C A D 61 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Recovery under Criminal Law There is a mechanism in place to deal with property / assets seized in the course of criminal investigations To remove and distribute seized property from the criminal system This is known as a disposal inquiry under s 370 of the Criminal Procedure Code 2010 (see also Part 19 of the CPC) 62 S M U A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Disposal inquiry (Key principles) The DI is not meant to resolve conclusively a dispute over title where there are competing claims Why - The DI court does not apply the civil process when to decide between the competing claims and applies a “rough and ready” approach to make an award to the party that it thinks has the better right to possession: Public Prosecutor v Intra Group (Holdings) Co Inc 1 SLR(R) 154 at The DI is not conclusive as to title and parties are not prevented from commencing a civil suit to assert their rights S M U A C A D 63 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Disposal inquiry (Key principles) The DI is intended to be an inexpensive and expeditious manner of distributing items and the width of the judge’s discretion underlines this intention: Thai Chong Pawnshop Pte Ltd v Vankrisappan s/o Gopanaidu 2 SLR (R) 113 at A person is only entitled to possession of the seized property if he satisfied the precondition of being in lawful possession of the seized property: Oon Heng Lye v Public Prosecutor 5 SLR 1064 at Where a person admitted that the seized property were proceeds of a crime, his possession could not be regarded as lawful: Oon at SA MC AU D 64 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Class Activity – who will you give the money to? Scammer instructed L to transfer 10k to W’s Who would you return the 10k which had been account seized? Read William Lim Tien Hou v Ling Kok Hua SGDC 237 (the initial decision of the District Judge) and Lim Tien Hou W received the 10k and William v Ling Kok Hua transferred bitcoin to S SGHC 18 (the in a peer to peer sale L transferred money to decision on the High Court of bitcoin W’s account, believing Judge exercising his that L was purchasing criminal revisionary powers bitcoin from S S M U A C A D 65 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Civil recourse in Singapore Important questions to ask at the outset Preliminary - Did you believe a crime was committed Who took your assets Where are your assets now Speed is of the essence to prevent assets from being disposed of S M U A C A D 66 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted (or why identification is important) There is no specific rule under the Rules of Court, which require a respondent to be named, i.e. it is open to you to commence proceedings against person unknown (see Janesh s/o Rajkumar v Unknown Person (“Chefpierre”) SGHC 264 at But you would still need a sufficiently certain description of the unknown person The position is the same where you are seeking interim injunctive relief (see CLM v CLN and others 5 SLR 273 at ) Not a bar if you don’t know who took your assets. But practically speaking, you need to know who took it, because even if you win, the judgment needs to be enforced, and its cold comfort if you have no one to enforce it against. S M U A C A D 67 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Where oh where (your assets are) If you know where it is, two options are open to you: First, it is open for you to go there and submit the local jurisdiction. Second, if it is a country that recognises Singapore judgments, you could then go there and register any Singapore award that you have obtained. See for example Singapore’s Reciprocal Enforcement of Foreign Judgments Act 1959 which governs the registration of foreign judgments in Singapore. S M U A C A D 68 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Don’t know the who or the where? Singapore Courts have the power to grant injunctions and search orders in aid of a claimant: s 18(2) read with para 5 of the First Schedule of the Supreme Court of Judicature Act 1969 and s 4(10) of the Civil Law Act 1909. These are usually interim (i.e. before the conclusion of the civil proceedings) and could be given on an urgent basis even before a claimant commences the proceedings S M U A C A D 69 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What kind of orders can be granted Proprietary injunction – aimed at preserving the property over which the claimant is asserting a claim over, and which would enable the claimant to reclaim their ownership of the property if successful against the respondent Freezing injunction – used to be known as the Mareva injunction, aims to freeze the assets of the defendant either domestically or worldwide, without limitation to the stolen assets. S M U A C A D 70 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What kind of orders can be granted Disclosure orders – these are usually ancillary to the main injunctive relief sought, and would assist the claimant in n locating the property. Where the main relief is a freezing order, such disclosure orders would also include determining the existence, nature and location of the defendant’s assets, clarifying questions of title concerning the assets, and identifying the parties involved in the fraud as well as third parties to whom notice of the injunction should be given Search orders – to enable a claimant to enter the defendant’s premises to search for, inspect and seize documents and materials to prevent the destruction of incriminating evidence S M U A C A D 71 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted What kind of orders can be granted Unclear if Singapore Courts will grant a freestanding order to obtain disclosure of information from third parties. These are typically used in in claims for fraud where a claimant seeks confidential documents from a bank or an exchange to support a proprietary claim to trace assets High Court in CLM declined to consider whether such an order should be granted, given that the crypto exchanges in question were parties to the proceedings and were not non-parties. S M U A C A D 72 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Parallel civil and criminal proceedings It is possible for criminal and civil proceedings to take place concurrently Singapore courts have clarified that the existence of a parallel criminal proceeding will not automatically stay the civil proceedings It is necessary for the claimant to show that his defence in the civil trial will give to a real danger of prejudice of the criminal trial (see Debenho Pte Ltd and another v Envy Global Trading Pte Ltd and Ng Yu Zhi SGHC 7 at to ) S M U A C A D 73 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Recap There are fundamental differences regarding how you can recover your stolen property in criminal proceedings and civil proceedings Where the wrongdoer is potentially overseas, Singapore Courts have shown a willingness to grant interim relief against the wrongdoer where it has jurisdiction in civil proceedings or in aid of foreign S M U proceedings 74 A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted 1 Class Discussion - Hypothetical S M U A C A D 75 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Class Discussion – Hypothetical 1. A came across an online job advertisement, posted by B, promising him “good job benefits” and “work from home perks” 2. After expressing his interest to B, A was asked to provide his personal particulars, including a photography of his NRIC, address, and his Singpass details 3. A was informed that the job requires him to receive customer payments to a “company” bank account which B allegedly opened for him (but was in fact opened using A’s Singpass details) and to consolidate the payments by transferring them to another of the company’s bank account based overseas, at the end of each week via online banking 4. After doing this for a month, C, who is A’s friend, contacted A, and informed A that C was about to transfer money to a girl, D, that C met online, when C realised that D had provided him with A’s bank account 5. When A informed B that he no longer wanted to work for B, B sent A a screenshot of a Whatsapp Group conversation where B informed his syndicate members of A’s address S M U and told them to “teach A a lesson he won’t76 forget”. A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Class Discussion - Hypothetical 6. C remained obsessed with D and continued messaging her constantly in the hopes that she would reply to him 7. When D did not do so because she was distressed by the content and the number of the messages, C decided to find alternative means of contacting her 8. He then approached E, a tech-savvy colleague, for help to gain access to D’s phone 9. Using a software he purchased online, E attempted to access D’s mobile phone by using a software that mimicked D’s features to bypass the phone’s biometric security when D left her phone unattended at a public cafe. E was not successful, and caused D’s mobile phone to be locked out and rendered unusable 10. Unfazed, C continued in his attempts to contact her. Based on the pictures that D posted and a methodical use of Google Maps, C was able to discern D’s usual haunts and schedule 11. C then attempted to physically contact D on at least two occasions, including standing S M U at the ground floor of her apartment and 77 blasting love ballads A C A D E M Y / academy.smu.edu.sg /  SMU Classification: Restricted Class Discussion - Hypothetical Identify: The offences that A, B, C (or D) and E may be charged with … Do you think they should be charged? What evidence that would be required to prove these offences S M U A C A D 78 E M Y / academy.smu.edu.sg /  SMU Classification: Restricted End of the Day! Thank you for your time S M U A C A D 79 E M Y / academy.smu.edu.sg /