order to constitute fraud, there are some elements necessary to be proved. In
Malaysia, there are 5 acts which may constitute fraud.1These acts must be made with intent to
deceive or to induce one to enter into contract and S.17of CA will not apply if
fail to prove the elements.2 Similar with UK and Washington,
Malaysia would also covers fraudulent misrepresentation (known as intentional
misrepresentation in Washington) under S.17(a)-(c).However, fraudulent
misrepresentation in Malaysia is more detailed than UK and Washington as CA has
listed down the acts constitute fraud.

suggestion of untrue fact.3 In Malaysia, the elements to prove
fraud is quite similar to UK which are suggestion of fact, the fact suggested
is untrue and it was made by one who does not believe it to be true.4In UK, Derry and others v Peek
stated that fraud will be proved if the false misrepresentation is made
knowingly, without believe in its truth or careless as to whether it is true or
false.5Malaysia case had referred to this case
and held that there is no fraudulent misrepresentation as it did not fulfill
the elements.6However in Washington, fraud will be
proved if there is false representation of material existing fact, the defrauder
has knowledge of falsity and with intent that it be acted upon by plaintiff and
plaintiff suffered damage as he/she was not aware of the falsity, relied on the
truth of the representation and right to rely on it.7

active concealment of fact. In this situation, silence is not amount fraud. The
elements need to be proved in Malaysia and UK are there must be an active
concealment of fact made by person who has knowledge of it.8
Sek Cheong v Great Eastern Life Assurance (M) Bhd and Tay
Tho Bok & Anor v Segar Oil Palm Estate Sdn Bhd which referred to
English case Pertab Chunder Ghose v Mohendra Purkait held that the party
had committed fraud as he had dishonestly concealed the material facts that he
has knowledge of it.9
Differently, fraudulent concealment in Washington will be proved if a party
intentionally prevents other to acquire material information.10
For example, the court held the act of ship owner to keep a boat afloat to
prevent buyer discovering its rotten hull was amount to fraud.11

fraudulent promises. The elements necessary to be proved in Malaysia are the
promise made without intention to perform it.12In
Bank Bhd lwn Rafidah bt Zainal Abidin & Ors, the court held that
the agreement made without intention to perform it was fall under fraud under
S.17(c)of CA.13In
Jaginder Singh &Ors v Tara Rajaratnam, the court held that fraud
had been proved as defendants had no intention to perform the promise and this
decision had been upheld by Privy Council. Then, elements requires in
Washington is quite similar to Malaysia but it requires false promise to future
performance and intention  to perform it
as stated under S.22-3221(c)
of Code of Distinct of Columbia(DC).14

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 Fraud in Malaysia is wider than UK and
Washington by the virtue of S.17(d) and (e)as it covers ‘act fitted to deceive’
which is general and has wide application. For example, the court held that the
appellant was guilty of fraud as he was not honest in the exchange of land
titles.15  Besides,
fraud in Malaysia also covers ‘act or omission that law specifically declares
as fraud’. For example, Federal Court in Eric Chan Thiam Soon v Sarawak Securities
Sdn Bhd stated that an act can be declared as fraudulent if it is
clearly stated in Penal Code.16 Different from Malaysia and UK, fraud
in Washington also cover constructive fraud which is misrepresentation due to
careless or negligence.17

burden of proof of fraud in UK, Malaysia and Washington is similar which is
upon one who alleging it and it is shown in Cooper v Cooper18, Datin Zainun binti Ismail v Tuan Minah binti
Syed Abdul Rahman& Anor19and Workman v Bryce.20Then, the standard of proof of fraud in
UK is preponderance of probability in civil proceeding which requires the person
asserting fraud to prove high degree of probability but not proof beyond
reasonable doubt as in criminal proceeding and this has been followed by
Malaysia in Lee You Sin v Chong Ngo Khoon.21In Washington, the standard of proof of
fraud is preponderance of evidence which requires the plaintiff to prove more
than 50% of likelihood but not proof beyond reasonable doubt and this has stated
in Davis
v. Department of Labor and Industries.22


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