§712-1223 - Gambling.
§712-1223 Gambling. (1) A person
commits the offense of gambling if the person knowingly advances or
participates in any gambling activity.
(2) Gambling is a misdemeanor. [L 1972, c 9,
pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]
COMMENTARY ON §§712-1221 TO 1223
Part III of Chapter 712 adopts a comprehensive pattern of
gambling legislation proposed in Michigan[1] and enacted in New York.[2] These
three sections of the Code initiate a comprehensive revision of Hawaii's
gambling laws. For the most part the coverage of the previous law has been
preserved, although the emphasis has been changed in several instances. The
Code provides penalties for those who exploit gambling activity; however, at
the same time, the Code introduces some limited liberalizations in the area
which reflect the actual attitude of society toward gambling.
Part III provides inclusive coverage for all forms of
gambling exploitation. Section 712-1221 covers exploitations of gambling in
the form of "advancing" or "profiting" from gambling
activity.[3] It is aimed at large-scale gambling and is the most aggravated
offense in this area. Under this section, a class C felony sanction is
provided for a person who (a) engages in bookmaking to the extent that the person
receives or accepts in any one day more than five bets totaling more than $500,
(b) receives in connection with a lottery or mutuel scheme money or written
records from a person other than a player whose chances or plays are
represented by such money or records, or (c) receives in connection with a
lottery, mutuel, or other scheme or enterprise more than $1,000 in any one day
of money played in the scheme or enterprise.
"Bookmaking" is defined in §712-1220(2) as taking
bets "upon the outcomes of future contingent events." The definition
of "lottery" in §712-1220(6) is comprehensive as was that provided by
the prior law,[4] without sacrificing clarity. The definition of
"mutuel" adds a specific definition not previously contained in
Hawaii legislation.[5]
A class C felony is imposed for violation of §712-1221 in
recognition of the large-scale exploitive nature of the offense.
Section 712-1222 provides misdemeanor liability for promoting
gambling in the second degree if a person knowingly profits from gambling
activity. This section covers the small-time promoter who profits from
gambling activity when the promoter receives money or other property as a
result of participation in the proceeds of any gambling activity.
Act 201, Session Laws 1973, amended §712-1222 by deleting
therefrom the advancing of gambling activities and limiting it to profiting
from gambling activities. This was done because advancing gambling activity is
covered by the new offense of gambling. Senate Standing Committee Report No.
806 (1973).
Section 712-1223 provides misdemeanor liability for gambling
if a person knowingly advances or participates in any gambling activity. This
is a new section which was added by Act 201, Session Laws 1973. The
Legislature stated that gambling in all its aspects is to be prohibited except
in the limited case of "social gambling" as set forth in §712-1231.
Thus, in Standing Committee Report No. 806, the Senate Committee on Judiciary
noted:
"While the
second degree promoting offense treats the problem of 'profiting' from gambling
in isolation, a new offense of 'gambling' has been created to cover all other
acts related to gambling for which evidence of profit need not be available nor
applicable. The point of this is to obtain a clearer statement that gambling
in all its aspects is prohibited except in the limited case of 'social
gambling'.
Under the existing law the broad
scope of the second degree promoting offense requires that 'social gambling' be
considered in a context that includes profiting from gambling. However,
'social gambling' and profiting are mutually exclusive by definition except in
the case of the player's winnings. This seems to be a point of confusion. As
proposed, the differential exclusion of social gambling is permitted to be
considered apart from the profiting problem, and it is thought that thus, a
more systematic treatment is achieved."
The former statutory law is all inclusive in condemning as
criminal any gambling regardless of how innocuous. Under prior law it was a
misdemeanor to set up or assist in any type of lottery scheme,[6] to sell or
buy a ticket or chance in a lottery scheme,[7] to conduct or play any game of
chance or any game where money is lost or won or to be present where such games
occur,[8] to exhibit or expose to view in a barricaded place any gambling
paraphernalia,[9] to be present in a barricaded place where gambling
paraphernalia is exposed to view,[10] to conduct or assist in any bunco games
(such as "three card monte" or the "shell game"),[11] to
bet on the outcome of any sporting event,[12] and to allow another person to
use any building or vessel for gambling activity.[13] The Code recognizes
distinctions in gambling which were not recognized in prior law. It provides
increased penalties for exploitive conduct, but exempts social gambling and the
casual bet as criminal offenses. The Code's sections strengthen the law by
providing a class C felony penalty for the "professional" promoter,
instead of a misdemeanor penalty as provided under previous law. By broadly
defining the terms "advancing gambling activity" and "promoting
gambling activity" it makes unnecessary the explicit listing of various
games of chance that was present in previous statutory law.[14] Small-time
gamblers are punished as misdemeanants under the Code, the same penalty
available under the former law.
SUPPLEMENTAL COMMENTARY ON §§712-1221 TO 1223
Act 161, Session Laws 1983, amended §712-1221(1) so that a
person may be prosecuted under this section if that person owed more than
$1,000 in any one day as a result of a gambling scheme. The prior law
prohibited as evidence, the receipt of wagered money, thereby requiring police
to witness the actual transfer of money before making an arrest. The amendment
enables police to prosecute bookmakers for gambling based on the contents of
seized bookmaking records. Senate Standing Committee Report No. 721, House
Standing Committee Report No. 440.
Act 83, Session Laws 1987, amended §712-1221 by changing the
one-day period to seven days because there were difficulties with proving
promotion of gambling within a one-day period. The extension of the time
period would also allow for more effective law enforcement pursuant to this
section. Senate Standing Committee Report No. 545.
Act 83, Session Laws 1987, amended §712-1222 by making
changes to this section for the purpose of conforming with §712-1221.
Conformity was desired with §712-1221 so that if there is insufficient evidence
to prove the first degree offense, a person could be found guilty of the second
degree offense. Senate Standing Committee Report No. 545.
Act 196, Session Laws 1990, added §712-1222.5 which makes it
illegal to promote gambling aboard ships. The legislature found that
intrastate gambling junkets would be detrimental to the State's family oriented
tourist industry. House Standing Committee Report No. 466-90.
Act 57, Session Laws 1992, amended §712-1222.5 to clarify
that gambling activities which are conducted during travel to and from foreign
nations and Hawaii are exempt to the same extent as gambling activities which
are conducted during travel to and from other states and territories of the
United States and Hawaii. Act 57 further amended this section to conform
subsection and paragraph designations to the style used in the Code. House
Standing Committee Report No. 1198-92, Senate Standing Committee Report No.
1947.
__________
§§712-1221 To 1223 Commentary:
1. Prop. Mich. Rev. Cr. Code, Chapter 61.
2. N.Y.R.P.L., Article 225.
3. See §712-1220(1) and (9).
4. H.R.S. §746-1.
5. Cf. id.
6. Id. §746-2.
7. Id. §746-3.
8. Id. §746-4.
9. Id. §746-5.
10. Id. §746-6.
11. Id. §746-7.
12. Id. §746-8.
13. Id. §746-9.
14. E.g., id. §746-4.