HRS 0712-1230 ANNOTATIONS

Surrender or forfeiture of animals, see §711-1110.5.

This section restates in general terms the previous law relating to forfeiture of gambling stakes, records, and devices.[1] The forfeiture is specifically made subject to the requirements of §701-119 which embodies a single procedure for the establishment of all forfeitures declared by the Penal Code. The procedure provides, as did the previous law,[2] for the protection of innocent owners of property which is involved in the commission of an offense. Intentionally omitted are prior provisions permitting a person who loses funds gambling to sue for recovery,[3] permitting a police officer, officer, or other person to sue to recover treble damages based on the amount lost (in which case one-half went to the person so prosecuting and one-half to the state for use for public schools),[4] and voiding instruments of indebtedness used in gambling.[5] These provisions are unrealistic, seldom, if ever, invoked, and unnecessary in view of the general forfeiture provision. This section was renumbered from §712-1229 to §712-1230, by Act 201, Session Laws 1973.

In State v. Nobuhara, 52 Haw. 319, 474 P.2d 707 (1970), the Hawaii Supreme Court ruled that certain moneys seized under a violation of former HRS §746-8, which proscribed betting on an athletic contest, could not be forfeited. The Court declared that there was no evidence to tie in the moneys with the betting activities and thus could not be forfeited under HRS §746-12.

Act 83, Session Laws 1979, amended this section to better define the properties which may be forfeited when used in illegal gambling. Within this context, the legislature specifically intended that "only paraphernalia used in fighting animals and birds be susceptible to...forfeiture...as distinguished from the animals or birds themselves." Conference Committee Report No. 60. The Act also established a preponderance of evidence standard for courts to use in determining whether forfeiture should be ordered.

Act 57, Session Laws 1992, amended this section to clarify that forfeitures of property used in illegal gambling are subject to the requirements of chapter 712A. House Standing Committee Report No. 1198-92, Senate Standing Committee Report No. 1947.

Insufficient showing that property was integral part of illegal gambling operation. 5 H. App. 547, 705 P.2d 54.

§712-1230 Commentary:

1. See former H.R.S. §§746-11, 746-12.

2. Id. §746-13.

3. Id. §746-16.

4. Id. §746-18.

5. Id. §746-19.