On the other hand, Me Sanizan chose not to discuss, as he would certainly nave done had he thought himself entitled to, the fact that counts n 3 and 9 of the andictment should constitute offences under french law.
In such way that, although the "Chambre Criminelle" did not expressly confim che decision on this count, no arguments to this effect had been put before 15.
It is true that criticism on this count was not easy.
The 5th and 9th counts of the request deals with misappropriations of funds committed in the following way.
Sanimen arranged for the creation by George Tan of companies as a front. and then arranged for loans to be granted to these companies which he knew fictitious, and for the funds ro be paid.
The Chambre d'Accusation considered that these grounds of accusation could qualify as fraud ("escroquerie"). Indeed. Sanisan led BMFL to believe in the existence of these fictitious companies in order to obtain funds, and this with the intervention of third parties. The fraudulent manoeuvre (creation of the fictitious companies) involving third parties in order to persuade of the existence of "False enterprises" (fictitious companies) 18 clearly characterised. The transfer of funds is not contested and the qualification of fraud can not be questioned.
In the enumeration, set out in Article 405 of the Criminal Code, of the fraudulent means which are necessary to make up the offence of fraud, there appears in particular "acts intended to persuade of the existence of false enterprises, of an imaginary authority or credit,
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Two of theas elements, distinguished by the law and only one of which would suffice, as shown by the use of the word "or", are cumulatively present in this case. Indeed, it is explained by the prosecution that the two banks which were victims of the fraud (the Bumiputra Malaysia Finance Ltd, and the Bank Bumiputra Malaysia Berhad) were presented, with the participation of George Tan, with 12 borrowing companies, fictitious because they were either not created or did not have any capital these are the "false enterprises" provided for in the statute - but were misled as to their solvency, which constitutes the "acts intended to persuade of the existence of an imaginary credit". These "screen" companies chus were able to play the role of an intermediary between the two victims and the real recipients of the funda.
More precisely, the relevent parties have even combined several of the different methods of realisation of the fraud recognised by French law. The production of misleading documents (Cass. Crim. 8th November 1976 Bul. Crim. N 317, 16th March 1970, Bul. N 107), such as those which showed the participation of other banks to the loan operations, as well as the intervention of third parties (Cass. Crim. 6th October 1977, Bul. N 293 and 4th May 1987 Bul. N° 175) - in particular George Tan can be added in particular to the abuse of a real capacity ("qualité vraie") (Cass. Cria. 23rd March 1978 D. 1979, 79) constituted by the use by Mr Rais Saniman of his functions at Bank Bumi Putra Malaysia Finance Ltd. (BMFL) bank.
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It is useful to point out that the operation could only succeed by concealing from the BMFL that it was being asked to lend the larger part of its resources" te one single group.
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