§712-1226 Possession of a gambling device. (1) A person commits the offense of possession of a gambling device if the person manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling.

(2) Possession of a gambling device is a misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]

COMMENTARY ON §§712-1224 TO 712-1226

These sections enlarge the scope of the previous law by adding inchoate gambling offenses involving the possession of gambling records or devices, thus permitting police intervention at the anticipatory stage of gambling. The sections also complement and bolster the coverage of §§712-1221, 1222, and 1223.

Sections 712-1224 and 1225 concern the possession of gambling records. These records may consist of any writing, paper, instrument, or article of a kind "commonly used" in a bookmaking, lottery, or mutuel scheme. The gradation of penalties into a class C felony and a misdemeanor is made on the same basis as the gradation of penalties for promoting gambling activities (§§712-1221 and 1222).

Section 712-1226 makes it a misdemeanor to manufacture, sell, transport, or possess a gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling. The term "gambling device" is defined by §712-1220(5). The definition specifically excludes from its scope lottery tickets to avoid needless overlapping of §§712-1224 and 1225 with §712-1226.

These sections are needed and justifiable for two reasons. First, because of the nature of gambling offenses, the State often cannot prove the actual promotion of gambling activity while at the same time it can easily prove the culpable possession of gambling records or devices. In view of the defense afforded by §712-1227, possession of gambling records and devices provides a legitimate basis for permitting police intervention and imposing penal liability. Secondly, by allowing the State to prosecute for possession of records or devices, society is able to restrict unlawful gambling activity while it is in its preparatory stage. Especially is this so when the definition of the possessory offense relating to gambling devices is drawn so as to cover trafficking in the devices.

The coverage of the previous statutory law is sketchy in regard to the possession of gambling records or devices. A person found in possession of a lottery ticket was guilty of a misdemeanor.[1] There was no express provision penalizing possession of bookmaking records or receipts or gambling devices. The Code fills this gap and provides a basis for earlier police intervention.

The existing case law holds that operating a pinball machine that gives free games upon the scoring of a certain amount of points is a form of gambling.[2] The Proposed Draft of the Code, as well as the Code when adopted in 1972, accepted this position. Originally, "gambling" turned on the possibility of receiving something of value.3 "Something of value" included "a privilege of playing at a game or scheme without charge." Thus, possession of a pinball machine originally came within the scope of §712-1225. However, by Act 201, Session Laws 1973, the legislature amended the definition of "something of value" by removing the phrase "or a privilege of playing at a game or scheme without charge." (See §712-1220(11), and Commentary thereon.) In commenting on the amendment, the Senate Committee on Judiciary, in Standing Committee Report No. 806 (1973) stated:

This phrase refers to such activities as pinball and other games involving the winning of a privilege of playing another game without charge. Such winnings were previously allowed under Hawaii law. Your Committee finds that there is no good reason to include 'free game' as something of value from gambling.

These three sections were originally numbered as §§712-1223, 1224 and 1225 in the Code when adopted in 1972. They were renumbered by Act 201, Session Laws 1973. Act 201 also made the following changes to these sections. In §§712-1224 and 1225, the phrase "other than as a player" was deleted, so that even a person who is a player may be subject to the offense of possession of gambling records. Also, in §712-1224, the clause "and constituting, reflecting, or representing more than 500 plays or chances therein" was inserted to describe the type of records of lottery or mutuel scheme that is necessary for the offense of possession of gambling records in the first degree.

SUPPLEMENTAL COMMENTARY ON §§712-1224 TO 712-1226

Act 174, Session Laws 1980, amended §712-1224 by expanding the offense to include persons who produce or distribute gambling records and by clarifying the definition and monetary amounts of such records. The purpose was to provide for more effective enforcement and to curb the number of pool tickets for extremely high amounts. Senate Standing Committee Report No. 857-80, House Standing Committee Report No. 492-80.

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§§712-1224 To 712-1226 Commentary:

1. H.R.S. §746-3.

2. Territory of Hawaii v. Uyehara, 42 Haw. 184 (1957); Territory of Hawaii v. Naumu, 43 Haw. 66 (1958).

3. §712-1220(4).