港府今年表示，擬着手擬備《打擊洗錢條例》修訂條例草案，落實建立虛擬資產交易所發牌制度，目標在2021至22立法年度把草案提交立法會審議。不過在法案提交至立法會前，於現時政策空窗期內，高葉律師行（Hugill & Ip）合夥人葉煥信律師警告，目前香港對加密貨幣監管不多，當中有許多灰色地帶和不穩定性，形容現時投資者風險猶如「雷曼兄弟案件」。他建議投資者在選擇平台時，須理解自己的風險。
加密幣平台多在外 不受港監管
過去全球不乏虛擬資產交易平台因資產被盜，而導致被迫申請破產保護的案例，例如曾為全球最大的比特幣交易所Mt.Gox。葉煥信警告，目前香港監管環境下，一旦平台倒閉，或平台擁有人消失，用戶追討時，或會面臨很大的困難。
他亦提醒，目前在香港有實際實體開設的平台為數不多，大部分加密貨幣平台設於外地，並不受證監會監管。
若平台資產被盜，或出現破產情況，現時虛擬資產交易平台有何機制保障投資者？BC科技（00863）旗下OSL Digital Securities（OSL）去年首獲證會發牌，公司執行董事刁家駿表示，作為持牌公司，該公司須每月向證監會提供流動資金報告，確保有充分流動資金，並區別平台及客戶的資產，把客戶的資產儲存於被隔離的電子錢包，並為錢包保存的資產提供保險保障。若OSL需要清盤，債權人並不能動用客戶資產抵銷OSL債務。
至於其他未獲證監會發牌的虛擬資產交易平台，在保障投資者措施上做法不一。交易平台Kikitrade表示，平台把用戶資產和平台營運資金獨立處理。若平台不幸破產，會把用戶資產退回給用戶。
宜詳讀平台條款 計算風險成本
香港數字資產交易所（HKD.com）則表示，該平台會把盈利的20%建立保障基金。若平台發生資產不幸被盜，相信該保障基金能應付客戶的賠償。葉煥信提醒，用戶應詳讀平台細節條款，留意條款細節。他亦表示，不少案例中，用戶存入資金時非常容易，但取回資金時卻遇上困難，例如要收取高昂手續費，建議平台用戶應把風險成本計算在投資內。
ENGLISH TRANSLATION
The window period of cryptocurrency regulation
Lawyer urges to be mindful of the risks
The Hong Kong Special Administrative Region Government made a statement this year that it proposes to implement a “catch-all” licensing regime under its current anti-money laundering legislation in respect of the regulation on the trading of virtual asset, with the goal to give the drafted legislation to the Legislative Council in 2022. However, before the implementation of this “catch-all” licensing regime, Alfred Ip, Senior Partner of Hugill & Ip, reminds us that Hong Kong at its current state lacks the relevant laws to regulate cryptocurrencies. As a result, cryptocurrencies in Hong Kong is rife with uncertainties which could expose the investors’ risk similar with those of the Lehman Brothers incident. Alfred Ip strongly recommends the investors that, when choosing any trading platforms to conduct trade or exchange cryptocurrency, must fully appreciate and understand the risks associated with it.
Most of the trading platforms are located outside of Hong Kong where Hong Kong has no jurisdiction to regulate
During recent years, it is not uncommon to see that virtual assets have been attacked by hackers on trading platforms, forcing organizations to file for bankruptcy protection, such as Mt. Gox in 2014 filing for bankruptcy protection in the US connected to a legal action by traders who alleged that they were defrauded by the bitcoin operation exchange. Alfred Ip explains that Hong Kong regulatory regime on virtual assets poses great difficulties for investors in chasing after the operator of the trading platform when the trading platform is being shut down.
Alfred Ip alerts that Hong Kong has no jurisdiction to regulate most of the trading platforms, because they are located outside of Hong Kong. Therefore, this leaves investors with a million-dollar question: if virtual assets are being hacked or when the operator of the trading platform goes bankrupt, will there be any remedies provided by the trading platforms to protect the investors?
OSL Digital Securities (OSL), the subsidiary of BC Technology, was first granted a license by the SFC last year. The CEO of OSL stated that OSL has consolidated a report on its accounts which is provided every month to SFC, ensuring that OSL has sufficient capital. In addition, OSL has stored the investors’ assets in a separate e-wallet to protect them in case OSL goes into liquidation, the debtors will not be able to seize the investor’s assets with the purpose to offset OSL’s debts. Moreover, investors’ assets in the e-wallet are also protected by the insurance provided by OSL.
One of the other trading platforms, Kikitrade has adopted a similar methodology used by OSL so that if its platform were to go bankrupt, Kikitrade will return all investors’ assets back to the investors. On the other hand, those trading platforms that are not licensed do not afford the same standard of protection to those that are licensed.
Read the terms and conditions of the platform carefully and understand the associated risks
HKD.com has announced that its platform will allocate 20% of its profit to set up a Default Fund to compensate clients if its platform is hacked.
Alfred Ip reminds investors to read the terms and the conditions of the trading platforms in detail. He further explains that there have been numerous incidents where the investors deposit their money very easily on the trading platforms but come across difficulties when seeking to retrieve their money back, such as high handling fees. Therefore, Alfred Ip urges investors to take into consideration all risks when trading virtual assets.
Originally published on Hong Kong Economic Times. The article is also available to subscribers in the online version.
