I fully agree with the analysis set forth in Justice Ramil's concurring and dissenting opinion and therefore dissent from section III.A. of the majority opinion. I also believe, as did the dissenters in Schad v. Arizona, 501 U.S. 624 (1991), under circumstances sufficiently analogous to render the observation apt in the present case, that the majority "misses the mark in attempting to compare this case to those in which the issue concern[s] proof of facts regarding the particular means by which a crime was committed." 501 U.S. at 656 (White, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting). Accordingly, in my view, the majority's statutory construction of HRS §§ 707-715(1) and (2) "is not only mistaken, but also undermines the integrity of the conceptual approach to criminal liability incorporated in the HPC [i.e., the Hawai`i Penal Code]." State v. Buch, 83 Hawai`i 308, 324, 926 P.2d 599, 615 (1996) (Levinson, J., joined by Klein, J., concurring and dissenting). That being so, and "[b]ecause the HPC is a fragile organism that is subject to abuse and requires vigilant protection, I have no choice but to address some of the implications of the court's decision in this matter." Id. (Levinson, J., joined by Klein, J., concurring and dissenting (footnote omitted).
For most of the reasons ably covered by Justice Ramil, I believe that the majority does violence the following
rules of statutory construction to which this court has consistently adhered. First, the fundamental starting point for statutory interpretation is the language of the statute itself.
Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.
Third, implicit in the task of statutory construction is our foremost obligation, namely, to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.
. . . .
Stated most obliquely, this court subscribes to the "well settled" rule that where there is no ambiguity in the language of a statute, and the literal application of the language would not produce an absurd or unjust result, clearly inconsistent with the purposes and policies of the statute, there is no room for judicial construction and interpretation, and the statute must be given effect, according to its plain and obvious meaning. Similarly, departure from the plain and unambiguous language of the statute cannot be justified without a clear showing that the legislature intended some other meaning would be given the language.
Stated more directly, even absent statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.
Id. at 324-26, 926 P.2d at 615-17 (Levinson, J., joined by Klein, J., concurring and dissenting) (citations, quotation signals, brackets, and footnote omitted) (emphases in original).
The work product of the foregoing violence is a construction of HRS §§ 707-715(1) and (2) that, in my opinion, "is unjust, absurd, and transforms the HPC into 'a rope of sand which perishes in the twisting.'" Id. at 334, 926 P.2d at 625 (Levinson, J., joined by Klein, J., concurring and dissenting) (quoting R. W. Emerson, "Politics," Essays: Second Series (1844), reprinted in Complete Works of Ralph Waldo Emerson 3:199 (1903), reprinted in F. Shapiro, The Oxford Dictionary of American Legal Quotations 294 (1993)).