Court of Appeal says the absence of a Bahasa Melayu translation does not defeat a defamation claim if the words are clear, understood and cause no prejudice.
Justice Faizah Jamaludin said while court pleadings should generally use the national language, the absence of a translation is not fatal if the words are reproduced exactly, understood by the parties and the court.
She said the earlier Court of Appeal decision in Rekha Munisamy v Ortus Expert White Sdn Bhd & Anor should not be interpreted as imposing a strict rule that every failure to translate foreign-language words will automatically defeat a defamation claim.
The court acknowledged that Bahasa Melayu is the national language and that Section 8 of the National Language Act 1963/67 generally requires court proceedings to be conducted in the national language.
However, the panel held that there is no rigid requirement for defamatory words originally published in English and reproduced verbatim in a statement of claim to also be translated into Bahasa Melayu.
Justice Faizah said the key issue was whether the omission had caused prejudice to the opposing party or affected the administration of justice.
In this case, the articles complained of were published in English, and the allegedly defamatory words were copied exactly in the statement of claim. Both the parties and the court understood the meaning of those words throughout the proceedings.
The defendants also did not object to the absence of a Bahasa Melayu translation during the High Court trial. Instead, they defended the claim on its merits, cross-examined witnesses and advanced legal defences.
The Court of Appeal therefore concluded that the omission did not prejudice the defendants or prevent them from properly responding to the claim.
The 68-page judgment arose from a defamation appeal by former Tune Talk CEO and musician Jason Lo against Star Media Group Bhd, The Star and three journalists over two newspaper articles, related online reports and a Facebook post.
While dismissing the defendants’ appeal against liability, the Court of Appeal allowed Lo’s cross-appeal on damages and increased the award from RM200,000 to RM300,000.
The suit centred on two articles published in The Star on May 16 and May 25, 2019, and a Facebook commentary by one of the reporters published on May 25, 2019.
Although Lo was not named, he argued that references describing him as a former telecommunications CEO, musician and father of three were enough for people who knew him to identify him.
The reports said that Lo had been arrested over allegations involving death threats against his former wife and family, trespass and claims of sexual abuse involving his children.
Lo denied the allegations and maintained that they were false and defamatory. He pointed out that police investigations later resulted in a “no further action” (NFA) classification and that no criminal charges were brought against him.
The Court of Appeal also upheld the High Court’s refusal to compel the defendants to issue an apology, saying an apology must be a voluntary expression of acknowledgement and remorse.
However, the court ordered the defendants to publish a full retraction of the May 16 and May 25 articles in The Star and The Star Online to correct the public record and further vindicate Lo’s reputation.
In a separate 24-page concurring judgment, Justice Ong Chee Kwan agreed that the Rekha Munisamy case was distinguishable and cautioned against applying it mechanically.
He said the important consideration was whether the pleadings sufficiently informed the defendant of the case it had to meet and whether any prejudice had been suffered.
Justice Collin Lawrence Sequerah, who is now a Federal Court judge, chaired the three-member bench. - FMT
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