By Reenat Sinay

Law360 (March 17, 2021, 9:06 PM EDT ) A jailed Chinese real estate developer's compassionate release over COVID-19 concerns will go ahead after a Manhattan federal judge on Wednesday rejected a last minute objection from prosecutors, who cited the defendant's initial refusal to be vaccinated last month.

Ng Lap Seng's four-year-sentence for allegedly bribing United Nations officials will be cut short after all following U.S. District Judge Vernon S. Broderick's decision not to reverse his Monday order granting release. However, the 72-year-old Ng will remain in custody until he receives his second vaccine dose next week, the judge ruled.

"There's a certain level of humanity in this situation I've decided to exercise and not put Mr. Ng through that sort of whipsaw effect," the judge said at a telephone conference Wednesday afternoon. "This is a unique situation."

Prosecutors raised the alarm Tuesday that Ng declined to be vaccinated in early February before changing his mind a few weeks later, arguing that Ng's behavior "substantially diminishes any otherwise-applicable basis to be considered for early release in light of the pandemic."

In a same-day response, Ng's legal team at Brafman & Associates PC countered that Ng was worried about potential side effects and that he ultimately did receive the first dose.

"No one should be faulted for taking time to learn about the benefits and risks of a vaccine, especially inmates who have restricted access to the news," Ng's attorneys said. "It would be the ultimate form of cruelty to now have to inform Mr. Ng and his family members that upon reflection, the Court changed its mind based on a Hail Mary attempt by the Government after the fact."

Ng initially chose not to receive the Moderna COVID-19 vaccine on Feb. 9, but later agreed to receive his first dose on Feb. 24, with the second dose scheduled for next week, court records show.

Each side faulted the other for failing to bring Ng's vaccination status to the court's attention until now, but Judge Broderick said at the hearing Wednesday that his decision was not based on "who did or didn't inform me about the vaccine and when." Instead, the judge cited his earlier findings on the matter, including that Ng has already served at least 75% of his sentence and that backtracking now could conceivably rise to the level of "some sort of cruel and unusual punishment."

One of Ng's lawyers, Ben Brafman, told Law360 on Wednesday that Judge Broderick reached the right conclusion.

"Judge Broderick focused on perhaps the key issue at hand, concluding that changing his mind and reversing his original decision would result in substantial cruelty to Mr. Ng," said Brafman. "Being told he is going home, then to be told he is not because the judge changed his mind, is fundamentally unfair." 

Ng is set to be turned over to U.S. Immigration and Customs Enforcement shortly after his second dose, and from there will be deported to China.

The billionaire developer was found guilty in 2017 of foreign bribery, conspiracy and money laundering after a jury heard that he greased the palms of two United Nations officials in order to garner support for a conference center he planned to build in Macau. He was previously set to be released this coming December.

Representatives for the government declined to comment Monday. 

Ng is represented by Benjamin Brafman and Stuart Gold of Brafman & Associates PC.

The government is represented by Daniel C. Richenthal and Janis M. Echenberg of the U.S. Attorney's Office for the Southern District of New York and David A. Last of the U.S. Department of Justice, Criminal Division.

The case is U.S. v. Ashe et al., case number 1:15-cr-00706, in the U.S. District Court for the Southern District of New York.

--Editing by Michael Watanabe.

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