CONCURRING AND DISSENTING OPINION OF
KOBAYASHI, J.I concur with the majority that the trial court erred in disregarding the presumption of constitutionality of the sta*285tute in question.
However, in my opinion, the real question is whether, on the record, the appellee adduced evidence showing that the substantive provisions of the statute are arbitrary and capricious and void under the due process clause of the Hawaii State Constitution and the Constitution of the United States.
In the trial below the appellee filed a motion to dismiss the charge filed against him and contended:
1. The statute is unconstitutional on the ground of unlawful assertion of police power.
2. The statute violates the constitutional guarantee of privacy.
In support of the first contention the appellee stated:
The present state of scientific knowledge indicates that marijuana use has no effects on the individual that leads directly to harm to others. At most it can be argued that possession of marijuana is harmful to the possessor. Even assuming arguendo that possession of marijuana is harmful for the possessor, it cannot be statistically demonstrated by the [State] that the consequent physical injury is so widespread as to be of such grave concern to the public as to affect the public interest generally. . . .
(See State v. Lee, 51 Haw. 516, 521, 465 P.2d 573, 577 (1970) for appropriate test).
In support of the second contention, the appellee argued:
The right to personal privacy . . . [is] a fundamental substantive constitutional right. . . . Griswold v. Connecticut, 381 U.S. 479 (1965); [t]he use of marijuana is a private act which is protected by this substantive right to privacy; [t]he actual use of marijuana involves no one other than the user. . . .
Together with his motion to dismiss, the appellee filed certain exhibits entitled:
1. R. Cowan, American Conservatives Should Revise Their Position on Marijuana, National Review, December 8, 1972;
2. Marihuana and Health, Third Annual Report to the U.S. Congress from The Secretary of Health, Education, and Welfare, DHEW Publication No. (ADM) 74-50, 1974.
*286Mr. Cowan, in his article, asserted as follows:1
1. Marijuana is non-addictive;
2. The use of marijuana does notin itself lead to the use of heroin;
3. No one has ever died from an overdose of marijuana;
4. Marijuana, used in moderation, causes no identified physical or mental problems for individuals who are otherwise healthy;
5. Marijuana does not induce criminal behavior or sexual aberration. In fact, it tends in most users to inhibit violence;
6. Marijuana, in moderate use, has little effect on the driving ability of experienced users of it — the contrast with socially equivalent alcohol consumption is to the disadvantage of alcohol;
7. Long-term abuse (gross overuse) should be assumed to be harmful but in fact there is as yet no conclusive evidence to that effect;
8. The moderate use of marijuana does not lead to changes in social behavior or to a loss of motivation;
9. Twenty-five million people use or have used marijuana.
The Secretary of Health, Education, and Welfare made, inter alia, the following pertinent observations and statements in his report:
1. Recent estimates indicate that about 24 million persons have ever used cannabis. It should be emphasized that over half of those who have ever used have only experimented with the drug. Probably not more than one in twenty uses [the drug] on a daily basis.
2. Certain patterns of related drug use have been found. Most characteristic is the use of alcohol and tobacco prior to and concurrently with marihuana use. Among college populations the drugs used, from the most to least frequently, are: beer, wine, hard liquor, lower potency marihuana, high potency marihuana and hashish followed in diminishing frequency by LSD and other drugs. Heroin use in this group is extremely uncommon.
*2873. Not too surprisingly, drug use by children is related to drug use by parents. When both parents use drugs such as alcohol, tobacco and other psycho-active drugs, there is a greater likelihood that their children will use marihuana.
4. In view of the continuing debate on the relative toxicity of alcohol and marihuana, it was of interest to investigate the effect of marihuana on the vestibular system which plays an important role in maintaining the equilibrium of the body. As it is well known, alcohol and several other drugs can produce serious impairment of this system resulting in ataxia and a loss of equilibrium.
Vestibular function tests show that the use of marihuana indicates no significant effect on the vestibular functions. Other tests, such as reaction time, visually evoked responses and sleep patterns on continuous EEG showed no drug-related changes.
5. A deficit in short-term memory has been clearly demonstrated in all of the studies.
6. Evidence is accumulating more clearly indicating that more complex tasks may be detrimentally affected by marihuana.
7. Despite the many effects of chronic cannabis use that have been suggested, attention during the past year has focused on a small number of these where there is still some controversy or evidence of a positive effect.
8. Speculation about chronic effects on the renal and cardiovascular systems have little hard evidence at this time to support them.
9. Whether there are long-term effects from cannabis, such as the increased incidence of lung cancer associated with tobacco, is entirely unknown at this time.
10. The existence of brain damage to chronic cannabis use is still an area of controversy. Definitive conclusions regarding cannabis use and possible brain damage cannot be reached at this time.
11. In general, there continues to be little evidence to suggest that light or occasional use of cannabis has serious deleterious physical effects.
12. At the present time there continues to be little evi*288dence that cannabis has either a significant teratogenic effect or have any significant effect on chromosome breakage.
13. Case reports of death from cannabis overdose continue to be extremely infrequent. Evidence from animal toxicity studies indicates that the ratio of lethal dose of cannabis to psychologically effective dose is very large and is much more favorable than that of drugs such as alcohol and many common over-the-counter drugs.
14. Although in the past isolated reports have associated marihuana with exacerbations of certain illnesses such as epilepsy and diabetes, a causal role has not been established and thus far the deleterious effect of marihuana in these illnesses has not been confirmed.
15. Although cannabis has been claimed to be a cause of chronic psychosis and an amotivational syndrome, there appears to be little well-controlled evidence to support this.2
In contrast, with the minimum but controversial findings of possible harm to the individual in the use of marijuana, and of the total lack of findings that marijuana use would cause the user to directly or indirectly harm others, the proof of the harmful effects of two publicly accepted drugs — alcohol and tobacco — is well documented.
The harmful effects of alcohol are numerous:3
1. Alcohol addiction is second only to nicotine addiction in incidence and prevalence in the United States; a conservative estimate is that five million Americans are alcoholics.
2. Alcohol is utterly destructive to the human mind; among 70,000 first admissions of males to state mental hospitals in 1964, more than 15,000 were given a diagnosis of alcoholism at the time of admission.
3. Alcohol is similarly destructive of the human being; thousands of heavy drinkers are threatened with death each year by cirrhosis of the liver.4
*2894. Alcohol is by a wide margin the biggest law-enforcement problem (public drunkenness, disorderly conduct, driving while intoxicated). In 1965, out of close to five million arrests in the United States for all offenses, over 1,535,000 were for public drunkenness. In addition, there were over 250,000 arrests for driving while intoxicated. Another 490,000 individuals were charged with disorderly conduct.
5. Homicide is also an alcohol-related crime.
6. Alcohol is a significant factor in the “battered child syndrome”. In a high proportion of cases in which a parent beats his young child so severely that hospitalization is required or that death ensues, the parent is drunk at the time.
Tobacco is one of the most physiologically damaging substances used by man.5
1. When smoked in cigarettes it is the chief cause of lung cancer.
2. Tobacco is also a factor in other cancers, in coronary artery disease, in emphysema of the lungs, and in other diseases.
3. Nicotine, contained in tobacco, is one of the most perniciously addicting drugs in common use.
History shows that nation after nation, and several states in the United States tried to curb the use of tobacco by criminalizing the cultivation, possession and use of tobacco. However, criminalization had no effect in reducing and/or eliminating the use of tobacco. Record shows that tobacco acquired a greater number of addicts,6 notwithstanding the penal consequences.
The history of the criminalization of the production, distribution, and consumption of alcohol is well documented in the tragic period of the prohibition era of 1920-1933.7 Alcohol *290prohibition was not repealed because alcohol is a harmless drug. Prohibition was repealed because it failed to discourage the consumers of alcohol, and, it created a monster in the form of organized crime syndicates controlling distribution of alcohol with its attendant violence.
Upon consideration of the record, notwithstanding United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) cited by the majority of the court, I am compelled to conclude that the statute in question constitutes an arbitrary and capricious exercise of police powers by the appellant. I premise my opinion on the following reasons:
1. There is no conclusive proof that marijuana is a detrimental drug;
2. There is no proof that mere possession of marijuana harms the individual possessor;
3. There is no proof that mere possession of marijuana would cause the possessor to directly harm others;
4. Any possible harm to the individual in the use of marijuana is merely debatable;
5. There is no proof that marihuana use leads the user to harm others;
6. It cannot be statistically demonstrated that the consequent physical and/or mental injury through the use of marijuana is so widespread as to affect the public interest generally;
7. Marijuana has not been proven to be an addictive drug;
8. There is no evidence of any secondary harm to society resulting from any harm to the user of marijuana.
I am of the further opinion that the imposition of criminal penalties for the possession of marijuana is irrational and oppressive and, also fails to accomplish the purpose of discouraging the individual possession of marijuana.
In State v. Cotton, 55 Haw. 138, 516 P.2d 709 (1973), the court stated at 139, 516 P.2d and 710:
We accept . . . the fundamental tenet that the relationship between the individual and the state leaves no room for regulations which have as their purpose and effect solely the protection of the individual ....
*291The proscription of possessing marijuana is, at best, solely to protect the individual user of marijuana.
In my opinion, however, the real purpose of the criminalization of possession of marijuana is simply to perpetuate society’s (majority of) prejudice against marijuana; a prejudice which I believe is based mainly upon inaccurate information. Clearly, the only confirmed harm of marijuana is, not in marijuana per se, but the laws which criminalizes the possessor. The lives and careers of many thousands of possessors have been damaged or destroyed irrationally and oppressively. The interest of society generally has been seriously harmed by the unnecessary criminalization of a large segment of the people. Organized crime or crimes have been fostered by the act of the appellant in proscribing the possession of marijuana.8
In the exercise of appellant’s police powers, the law is clear:
To justify the State in [thus] interposing its authority in behalf of the public, it must appear, first, that the interests of the public [generally, as distinguished from those of a particular class] require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .
Goldblatt v. Hempstead, 369 U.S. 590, 594-95 (1962);Lawton v. Steele, 152 U.S. 133, 137 (1894).
In my opinion the statute prohibiting the possession of marijuana fails to meet the above test. Mere debatable possible harm of marijuana on the individual user does not justify the appellant in interposing its authority in behalf of the public. Assuming arguendo justification exists in proscribing the possession of marijuana, the means used to discourage the individual possession of marijuana is not reasonably necessary. The means used has not only failed to accomplish the purpose but is irrational and unduly oppressive upon the individual marijuana users.
*292It is ironic, indeed, that the inexplicable moral code of the majority of society accords the stamp of moral approval of two of the most harmful drugs — tobacco and alcohol — by permitting the cultivation or manufacture, the distribution, and the general use thereof, without criminal penalties, except in extreme specific instances. Yet, in the case of marijuana, where there is no conclusive proof of its harmful effects, and where the possible harm is merely debatable, and further where there is no evidence showing that marijuana use or possession thereof causes the user or possessor to harm others, the state totally proscribes, with criminal penalties, the mere possession of marijuana.
I would affirm the result of the trial court’s judgment for the reasons stated.
See also E. Brecher and Editors of Consumer Reports, Licit & Illicit Drugs, Part VIII (1972).
See E. Brecher and the Editors of Consumer Reports, Marijuana: The Health Questions, Consumer Reports (March 1975).
See E. Brecher and Editors of Consumer Reports, Licit & Illicit Drugs, Part IV, ch. 32 (1972).
See Liver Cirrhosis “Cure” Seen, The Honolulu Advertiser, March 25, 1975.
E. Brecher and Editors of Consumer Reports, Licit & Illicit Drugs, Part III, chs. 23-26 (1972).
E. Brecher and Editors of Consumer Reports, Licit & Illicit Drugs, Part III (1972).
Id. Part IV.
Hunter, Sunday Star-Bulletin & Advertiser, July 25, 1971, § A, at 1. But see Honolulu Advertiser, July 26, 1971, § A, at 1. For effects of criminal sanctions, generally, see H. Packer, The Limits of the Criminal Sanction, 270-282 (1968).