§701-105  Effect of commentary.  The
commentary accompanying this Code shall be published and may be used as an aid
in understanding the provisions of this Code, but not as evidence of
legislative intent. [L 1972, c 9, pt of §1; am L 1975, c 163, §8; am L 1986, c
314, §2]



 



COMMENTARY ON §701-105



 



  Section 105 of the Proposed Draft of the Code provided: 
"The commentary accompanying this Code shall be published with the Code
and may be used as evidence of legislative intent and as an aid in construing
the provisions of this Code in the event of ambiguity."



  In considering the initial draft of §105, the Legislature
concluded that the commentary, as revised to reflect legislative changes,
should be published as aid to the bench, bar, and others charged with the
administration of justice in criminal cases.  However, in view of the strong
judicial deference given legislative committee reports and other evidence of
legislative intent authored by the Legislature or its staff, the Legislature
refrained from adopting the initial commentary accompanying the Judicial
Council's Proposed Draft and according it the same status as a legislative work
product.



  The Commentary and Supplemental Commentary on the Code are
intended to explain the provisions of the Code.  The Supplemental Commentary
attempts to explain the changes that were made by the Legislature to the
Proposed Draft of the Hawaii Penal Code (1970) which was prepared under the
auspices of the Judicial Council of Hawaii.  It also deals with subsequent
legislative changes in 1973, 1974 and 1975.  The commentaries are designed to
give the reader a better understanding of the provisions of the Code.  Together
they provide an explanation of the considerations involved in the drafting of
various sections of the Code.  The commentaries also point out the treatment in
the Model Penal Code and certain state revisions of provisions the same as or
similar to those contained in the Hawaii Penal Code.  Finally, the commentaries
explain the changes to previous Hawaii law which are brought about by the new
Code.



  Act 163, Session Laws 1975, amended the section by deleting
the requirement that the commentary be published with the Code.  The Revisor of
Statutes was authorized to publish the commentary in any manner the Revisor deemed
would "promote its basic purpose [as an] aid in understanding the
provisions of the Code."  Conference Committee Report No. 19.



 



Case Notes



 



  As an example of judicial use of the Commentary to this Code,
see State v. Nobriga, 56 H. 75, 527 P.2d 1269 (1974), a case in which the court
was called upon to interpret certain sentencing provisions of Chapter 706.  The
court said that, as the forerunner of the Code, the Commentary to the Hawaii
Penal Code (Proposed Draft) (1970) "sheds some light on the purpose
underlying the provision even though it was not intended to be a definitive
statement of legislative intent."  In using the Commentary as an aid in
reaching its conclusion, the court said: "Although it is not considered
evidence of legislative intent, we look to the Commentary pertaining to the
pre-sentence investigation section in the Penal Code for some understanding of
what that section was designed to achieve."



  Commentary, while not evidence thereof, is expressive of
legislative intent.  57 H. 418, 558 P.2d 1012.



  Commentary may be used as aid in understanding the code.  59
H. 92, 576 P.2d 1044.



  Commentary can be looked to as an aid in interpreting the
statutory provisions.  61 H. 531, 606 P.2d 920.